86, FEPERAL 'RFiPORTER.
the collector of'theport entry of his vessel, they stand, in regard to admissibility" upon the same footing with other original official documents. 2 TayI.Ev, §§ 1431-1434, The judg' ment of the circuit court is affirmed, with costs of this .court.
STONE v. MURPHYet at. (DIstrict Court, D. March 4, 1898.)
Under Admiralty Rule 47 and Rev. St. §§ 000, 991, where the master and mate of a ship are arrested In the state of Oregon on libel for damages for injuries inflicted on the high sea,ij, they are entitled to discharge on giviJlg bond conditioned at all times to "!;ander themselves amenable to tib,e process of the court during the pendency of the action, and to such as may be Issued'to enforce the judgment," as provided by the laws of Oregon, and cannot be required to give a ,bond conditioned for the payment of the money ' awarded by the final decllee.'
This was a libel by Amos stone, by Edward N. Deady, his, guardian ad litem, against E. L..Murphy and George Harvey, to recover dam· ages for personal injuries inflicted by defendants on the high seas. The cause was heard on plaintiff's motion to require .defendants to give a new stipulation. Edward N. Deady and John H. ]!lall,far libelant. O. E. S. Wood and J. O. Flanders, far defendants. Judge. This is an action for damages for personal injuries received at the hands of the defendants on the high seas. The defendants are respectively the master and mate of the ship George Stetson, recently arrived in this port. Upon the filing o.f the libel the defendants were arrested, and gave bonds in the sum of $2,000 each, upon condition that they shall at all times render themselves amenable to the process of this court during the pendency of this action" and appear and rellder amenable to such process as may be issued to enforce the decree herein. The plaintiff moves that the defendants be required tq give a new stipulation, conditioned that they will appear ill .the suit,: and abide. by all orders of the court, and pay the m,oney a:w,a.,rc1ed by the decree herein. Admiralty Rule 3 provides as f()ll()ws:
"(3) In allsllits In personam,wherea simple. warrant Of arrest Issues and is executed, the marshal may take biill, with sufficiimtsureties, from. the party arrested, by bond or stipulation, upon condition that he will.appearjn the suit and aIJide by all orders of the court, Interlocutory or final, in the cause, and· pay t):Je money awarded by tOe final decree' renderell therein in the .cburt to which. the process is returnable, or In ,lll).!y llPpella£e coqr,t" ;And upon 3.uch bond or stipulation summary process of execution may and be agaInst t)1e principal and sureties' by the COUl;-t· to' which suell' process Is turnable, .to enfol'ce the final' decree so rendered, or upon appeal' by the'appel· 1\1te court." "
n,isapplicati(jn, for a new bond is based upon rUle 3, as above,' and is by the decision of this court in the case of Hanson v. Fowle, 1 Sa,wy. ,497, Fed. Cas. No. 6,041. , . On tJ1eother hand, it is contended that under rule 47, which provides that, "in all suits in personam where a simple warrant of arrest issues lWd is executed, bail shall be taken by the marshal and the court in those cases only in which it is required by the laws of the state where an, arrest is made upon similar or analogous process i88u' ing from the state courts," inasmuch as by the laws of Oregon a party arrested ina civil action is entitled to his discharge from the arrest upon giving an undertaking to the effect that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment,the defendants in this case cannot be required to give a bond conditioned for the payment of the money awarded by the final decree herein. Defendants. also call attention to sections 990, 991, of the Revised Statutes, which provide as follows:
"Sec. 990. No person shall be imprisoned for debt, in any state, OD process issuing from Q court of the United States, where, by the laws of such state, imprisonment for debt has been or shall be abolished. And all modifications. conditions, and restrictions upon' imprisonment for debt, provided by the laws of any state, shall be applicabie to the process issuing from the courts of the United States to' be executed therein; and the same course of prOcee<11ngs shall beadollted therein as may be adopted In the courts of such state. "Sec. 991. When any person Is arrested or imprisoned in any state, on mesne process or execution issued from any court of the United States, in any civil action, he Shlill be entitled to discharge from such arrest or imprisonment in the same manner as if he were so arrested and imprisoned on like process from the courts of such state. The same oath may be taken, and the same notice thereof shall be required, as may be provided by the laws of such state, and the same course of proceedings shall be adopted as may be adopted in the courts thereof. But all such proceedings shall be had before one of the commissioners of the circuit court for the district where the defendant is so held."
In the case of Hanson v. Fowle, it was held that these provisions, which relate to imprisonment for debt, do not apply in case of an arrest in a suit in personam for damages for injuries done the person; 11lat, while a person who willfully injures another in person is liable therefor in damages, and may, therefore, in a sense, be called the "debtor" of the party injured, and the sum due for the injury "debt," he is in fact a wrongdoer, a trespasser, and does not come within the reason of the rule which exempts an honest man from imprisonment because he is pecuniarily unable to pay what he has promised; that, for instance, a person who wrongfully beats his neighbor, kills his ox, or girdles his fruit trees, ought not to be considered in the same category as an unfortunate debtor. And yet it must be admitted that a claim of this kind, when it ripens into a decree for a sum of money, becomes a debt against the defendant in the decree. It is true, such a claim is not a debt; it is less than a debt; and it cannot be said that the reason for abolishing imprisonment for debt does not apply in a case like this. If a defendant is not liable to imprisonment for a debt, he should not, for the stronger reason, be liable to imprisonment in an action where the result can only be a judgment for money_
86 FEDERAL .REPORTER.
Rule 47 is comprehensive. It! provides no exception that will exclude this case from its provisions. It provides that in all suits in personam, where a simple warNnlt of arrest issuelilj be taken only in th0lile;cases in which it as, required by the laws of the state where an arresbis, made upon similar process issuing from the state courts. And so, too, of section 991 of the Revised Statutes: Here the provision is that, when any person is arrested or imprisoned in any state on mesne process or" execution issued from the courts of the United States in any civil action, he shall be entitled to a discharge from the axrest or imprisonment in the same'manner as if he were so arrested and imprisoned on like processfrotn the state courts. The language, "on mesne process from any court of the United States in any civil action," admits of no exception in civil actions. And this is a civil action to recover damages. ,Upon the contention mnde by the plaintiff' it' might happen that a party would be subjeCted to imprisonment in a case where it would be impossible that such a bond as is required in this suit sliould be These are cases where the parties are usually at a 4iljliMGe from their bomes., 'There is no limitation upon the amount that a plaintiff may claim in such cases; and, if the right exists to demanda'Mnd for the. payment of any decree that may be awarded, tbeplaiDtiff, be undet" the temptation to make his ,claim for damages solaJ:ge that a defendant situated as these defendants are, will, in the nature of things, be incapable of giving it. The requirement; therefore, that ismllde in this case, is not only not w,ith,in, the law" b"ut, i,tls,,a requirement most to be made under the circumstances. The bonds already given are aU that can :6e required. They secure to the plaintiff all that he now has under his warrant of arrest,naniely, the appearance of the defendants in a and their submission to all the orders of the court made therein. If no bonds were,given,and the defendants remained in custody, this is all the security the plaintiff would have, and this is what is secured to him by the' bonds as given. The motion that the defendants be required to give furtJiier bail is therefore denied.
FARMERS'. MERCHANTS' NAT. BANK V. SCHUSTER.
FARMERS' & MERCHANTS' NAT. BANK OF WACO v. SCHUSTER et al. (Circuit Court of Appeals, Fifth Circuit. No. 629.
REMOVAL OF CAUSES-LoCAL PREJUDICE.
March 1, 1898.)
After a cause has been tried in a state court, and a mistrial entered, It cannot be removed on acconnt of local prejudice. Where an action in trespass to try the title to land has been tried in a state court, and a mistrial entered, a person becoming interested in the land ill controversy, and intervening as a defendant, cannot have the cause removed to the federal court on account of diverse citizenship.
Appeal from the Circuit Court of the United States for the Northern District of Texas. John W. Davis, for appellant. D. T. Bomar, for appellees. Before McCORMICK, Circuit Judge, and NEWMAN and PARLANGE, District Judges. NEWMAN,District Judge. The facts in this case, necessary to an understanding of the issues involved, are as follows: A suit, being a trespass to try title to land under the Texas statute, was filed in the district court of McLennan county, on the 17th day of February, 1894, in favor of the Farmers' & Merchants' National Bank of Waco against A. N. Schuster et al. On July 2, 1895, the plaintiff filed its first amended original petition, which petition was trespass to try title to about 20,000 acres of land lying in Sterling county, Tex., the defendants being A. N. Schuster and wife, Mrs. Lucretia Schuster, A. Judson Cole and wife, Luda Cole, Mrs. Florence King, August Schuster, and D. T. Bomar, all of whom resided in the state of Missouri, except defendant Bomar, who resided and resides in the state of Texas. The petition showed the levy, in favor of the bank on the 26th of February, 1894, of a writ of attachment on the land sued for as the property of August Schuster, issuing out of the district court of McLennan county, Tex.; a judgment in said cause foreclosing its attachment lien; an order of sale under said judgment, and purchase by petitioner, with sheriff's deed to the land. The petition also alleged that on the 5th day of December, 1893, August and A. N. Schuster, for the purpose of hindering, delaying, and defrauding their creditors, conveyed part of said land to A. Judson Cole, trustee for Mrs. Lucretia Schuster; that on the same day said August Schuster, with intent to hinder, d,elay, and defraud his creditors, conveyed all of the remainder of said land except six sections to A. N. Schuster, his co-defendant; that on the 8th day of May, 1894, A. N. Schuster conveyed all the land conveyed to him by August Schuster to D. T. Bomar, as trustee, for the benefit of Mrs. Luda Cole and Mrs. Florence King in the first class, and for the benefit of about 60 other parties, scattered all over the United States, in the second class, said trust deed directing said Bomar to take charge of said propert,Y, manage aud dispose of the same, and pay