no definite rule. It may be by a ratable portion of the value of the property saved, or it may be a sum in gross. The value of the property at the time is not fixed by the agreement. It is agreed that the boat cost $4,000 and the repairs $2,000; that she was insured for $5,000; and that recently, in negotiations for her purchase, claimants held her at $12,000; but what changes had heen made in the value does not appear, or whether the boat was in fact worth that sam is not stated. It is agreed that the costs and repairs up to that time amounted to $6,000, and it is the value at that time and not subsequently that must be· taken as a basis, if value is considered. It seems to me that, whether the amount be considered in gross or ratably according to value, $500 is .a fair compensation to libellant f01 his services. The service was not long, nor is it claimed that there was much hazard. Libellant was the discoverer of the fire and mainly instrumental in the rescue. He is therefore entitled to a greater compensation than Stricker, who came to his aid. The watchman, whose dereliction of duty caused the danger, can claim nothing. Libellant will be allowed the sum of $500 and full costs, for which let a decree be entered.
Sec same case on appeal, infra.
THE OLD NATCHEZ.
(Oircuit Court, S. D. Mississippi. 1881.)
Decision of the district court, ante, 476, affirmed.
In Admiralty. On appeal. PARDEE, C. J. In the summer of 1879 the steam-boat Natchez was taken to Cincinnati, Ohio, and dismantled, and stripped of her boilers, engines, and paddle-wheels. Her cabin was stripped of its furniture, her smoke-stacks were taken down, and everything that could be made available in the construction of a new steam-boat was taken off. There remained of the old no at the hull, the cabin, the texas, the hog-chains, running from stem to stern, the fore and aft capstans, the starir steps ,leading from the lower to the boiler decks, her boiler deck, and hurricane roof. She was without motive power of any'kind, and remained moored at Cincinnati until the fall of 1880, when she was purchased by the Vicksburgh Wharf & Land Company, and then towed to Vicksburgh, in this state, and moored to a landing
'rHE. OLD NA.'.CCHEZ.
abou,t half a mile from the city. Carpenters were put 'to work on her, changing ,her decks, erecting a cargo-box, and otherwise remod-elling and preparing her for a wharf-boat. These repairs had not been completed on h.er. and she was engaged in no manner in commerce or navigation, when in the night.time of July 19,1881, the libellant discovere.<l,her to be on.fire, with her watchman on board and asleep, and no other assistance at hand. BlY the efforts of libellaJ1t the hull or hulk, or ba1'ge or wharf-boat, was saved. At this time there was; in the interest of claimants,insurance to the amount of $5,000 "on the hull, cargo-box, tackle, and apparel of their wharf-boat Natchez, lying at," etc" ,conceded to be the same hull or hulk, or wharf-.hoat,saved by libellant and)ibelled herein.' . The claimimtresiststhe claim for salvage on the ground that the court is without jurisdiction the-Natchez'wa.s a mere hulk. without IJ}.Qtive power ,of any, kind, and was not engaged in commerce or navigation, awl was destined for a wharf-boat. The distric,t court maintained jurisdiction and allowed salvage on the ground that the Natchezwaa a floating boat or vessel on a navigable stream, and, as such, intended to aid commerce and fitted for a »avigation, an(l supported the decision with the case of The Cheeseman v. Two Ferry-boats, 2 Bond, 363. The claimant relies in this court on the case of ,The Hendrick 3 Ben. 419, and makes the argument that at the time the alleged salvage services were ren" dered the Natchez was not engaged in aiding C0mmerce or navigation, and at that time, or as a wharf-boat, she was not subject to any maritime liens or responsibilities. The facts of The HendJrick Hudson are entirely different from the facts of this case. The f.[endrick Hudson was aground, destined to continue so, and she had been converted into and nsed as a "saloon and hotel," and. she was only to be floated so as to reach a more eligible location .. She was no more subject to admiralty jurisdiction than would be a hotel on a wharf. The reasoning in the case of The Cheeseman fully sustains the judgment of the district court in this case, and, were it necessary, I might be willing to wholly base my judgment on the same ground. But it is not necessary, as the agreed facts in this case, as I have recited them, show that no matter what may have been the intention of her owners as to future use, the dismantled Natchez still retained all the characteristics and distinctive features of a water-craft, capable of being used in commerce and navigation, and she was afloat on waters over which the courts of the United States have admiralty
jurisdiction. As such water craft she was insured by her owners. As a barge or lighter she may be in use ,to-day. As such water-craft she could be in impending peril on a public, navigable river, and could be rescued from such peril by maritime service. Salvage is compensation for maritime services rendered in saving property or rescuing it from impending peril on the sea, or on a public navigable river or lake where interstate or foreign commerce is carried on. See Marvin, Salvage, § 97. Under this definition it will be noticed that the property saved need not have motive power, nor be engaged in commerce or navigation, to be subject to salvage. Nor do I see how the intended destination of the property can affect the question. Conceding that the actual use of the property may determine the right to salvage, as was decided in the Hudson Case, yet here the Natchez was not yet used as a wharf-boat, but stood upon. the same footing as any other ba.rge moored to the bank of the river waiting to be loaded, towed away permanently, tied up, or broken up, as the business or interests of the owners might suggest or require. Whether a boat fitted, arranged, and actually used as a wharf-boat can be the recipient of maritime services in saving her from impending peril, so as to make her liable for salvage, it is not necessary to decide. The argument made, that in the conceded condition and position of the Natchez she was not subject to maritime services, liens, and resp:msibilities, is not well supported. Under the law of Mississippi she could be the subject of liens which this court would recognize, and in proper cases enforce. See Code, Miss. § 1395. She could have been liable in cases of collision, and she was a subject for maritime contract as per insurance in this case. In my judgment the decree of the district court in this case was correct, in maintaining jurisdiction and holding that libellant was entitled to salvage compensation. Let a decree be entered in this court in terms the same as was entered in the district court, with costs.
UNITED STATES V. LEVERICH.
UNITED STATES 'V.
LEVERICH and others.
November 2, 1881.)
(DiBf!rict Court, S. D. NCIlJ York.
At the common law a jUdgment on demurrer was a final disposition of the case, unless leave was given at the same term of the court to withdraw it and plead over.
2. PRACTICE UNDER THE NEW YORK CoDE OF PROCEDURE-ORDER OVERRULING
Under the New York Code of Procedure, where, upon demurrer to an answer the setting up new matter in defence, an order is entered simply demurrer, and no reply to such new matter is required in order to go to trial, held, that such an order, not directing final judgment, is, in practice, equivalent to an order to proceed to trial upon the issues raised by the answer as it stands, and that no other formal withdrawal of the demurrel' is necessary.
Motion to Strike Cause from the Calendar. . S. L. Woodford, U. S. Atty., and E. iJ. Hill, Asst. Dist. Atty., for plaintiff. Miller &; Peckham, for defendants. BROWN, D. J. The plaintiff demurred to new matter in the answer which did not constitute a counter-claim, but was set up as a defence to the action. This is authorized by section 494 of the New York Code of Procedure. After argument the demurrer was overruled. The defendant thereupon prepared an order for signature, overruling the demurrer and ordering judgment for the defendant, with costa. On inspecting the order on file, it appears that the judge struck out the words "ordering judgment for the defendant on demurrer," leaving simply the words "overruling the demurrer." The defendant entered this order and served upon the plaintiff a copy of it, and afterwards admitted due service of a notice of trial for this term. He now moves to st:tike from the calendar as improperly there, because no order has been entered giving leave to the plaintiff to with. draw the demurrer and proceed either to reply or to go to trial upon the issues of fact raised by the answer, as denied by implication, under the provisions of the New York Code, § 522. The practice at common law, and in this state prior to the Code, "as well settled, that if a demurrer to a plea or answer for insufficiency were overruled, the defendant had judgment of nil capiat, that the plaintiff take nothing by his writ, and this operated as a final judgment, (1 Burr. Prac. 251; 2 Arch. Pro 11, 225; Brevoort V. Brevoort, 40 N. Y. Supr. 216; Cooke v.Sager, 2 Burr. 754;) but the coud v.9,no.8-31
might give the party in fault leave to withdraw the demurrer and reply on terms,although this was allowed only during same term of the court. Currie v. Henry,S Johns. 140; 7 Cow. 101In the theory of pleading theissne of law raised upon a general demurrer to a pleading completes the recordaf the case to be tried, and judgment follows logically for the one party 01; the other according to' the decision upon this issue. Theoretically, it is as much a determination of the case which the record presents as a verdict upon an issue of fact; and if there be but one count or plea, a decision of the sufficiency of this upon demurrer disposes finally of the whole case which the record un'ies'sa record be ailowed to be· made up and thereafter presented. The usual mode of· doing this has long been to permit a withdrawal of the demurrer. 1 Burr. Pro 251; ·v. 11 Johns. 22; County of Dallas V. Mackenzie, 94 U. S. 660, 664. This permission has always been discretion of the court, as it is also declared by section 497 of the Code, an d it is sometimes refused. 2 Sandf. 673; Lowry v. Inman, 6 Abb. (N. S.) 394; Osgood v. Whittflsey, 10 Abb. 134; 7 Robt.480. The mere decision of the court upon a'demurrer, holding it good or ba,d, does not dispose of the record. The order or judgment entered upon the decision ought to indicate what is intended. If the new matter in the answer be such as under the Code requires a reply, leave to reply would be necessary; and such leave to reply would be a sufficient withdrawal of the demurrer. In this case there was no new or further pleading by the plaintiff, and hence no need of providing therefor in the order entered on the decision of the demurrer. Had the court intended to enter judgment for the defendant upon its decision the clause to that effect, asked for by the defendant, would not haye been stricken out. In striking out this permission for judgment the intention of the court was apparent that the cause should proceed to trial upon the complaint and answer as upon a formal withdrawal of the demurrer, which had been overruled. If judgment is not ordered that is necessarily the only alternative for disposing of the cause; and although a recital of leave to withdraw the demurrer would be more explicit, and more in accordance with the printed forms, yet where, under the Code, no further pleading is necessary, and judgment on the demurrer is not allowed, an order "overruling the demurrer" may. I think, be fairly held to imply and include a permission to withdraw the demurrer and proceed to trial upon the issues as they stood prior to the demurrer. Such, I am informed,
SMITH V. SOHWED.
has been the understanding of other judges of the United States courts in this district, ltnd as the defendant has in this case admitted due notice of trial of the issues 'of fact, since his entry of the order overruling the demurrer, it would, seem that he also must have had the same understanding. The use of, this form of 'order, upon this construction of its meaning and effect, has prevailed to a considerable extent, and no reasons of importance are shown for disturbing this prltctice. The motion should be denied.
(Circuit.Oourt, W. D. MiBlOUri, W. D.
A transaction is admissible in evidence, if it can be connected with the transaction in controversy as part of a connected scheme to defraud. 2.
SAME-BONA FIDE DEBT-DEFRAUDING OTHER OREDITORS-JUDGMENTS SliT
AsIDE. If the purpose of a creditor in obtaining a judgment is not to collect his . debt, but to help' the debtor cover up his property, his judgment will be set aside, though it be shown that his debt was bona fide. 3.
FEDERAL COURTS-IRREGULARITIES IN JUDGMENTS OF STATE COURTS.
A federal court will not set aside a judgment of a state court for a mereirregularity, when the proceeding is merely tantamount to the common-law practice of moving to set aside a judgment for irregularity, or to a writ of error, a bill of review, or an appeal. 4.
REMOVAL OF OAUSE8-SUBJECT-MATTER OF THE SUIT.
A bill in chancery that had been tiled in a state court to enjoin a judgment creditor from proceeding to enforce his judgment, and to set it aside, was removed to a federal court. Prior thereto the complainants had brought and prosecuted to judgment attachment suits against the judgment debtor, and the property attached had been sold by order of court and the proceeds remained in the hands of the sheriff. The bill prayed for the payment of their judgments out of this fund. Held, that the fund in the hands of the sheriff was no part of the subject-matter of the suit which had been removed, and that the court had no control over it.
This is a bill in equity brought to set aside a judgment renclered in the Circuit court of Jackson county, Missouri, on the twenty-sixth day of .January, 1880, in favor of respondent Heller, and against respondents Schwed & Newhouse, for $9,512.50. The judgment was by confession, and it appears upon its face to have been upon a promissory note given by said Schwed & Newhouse to said Heller. The bill charges that the judgment was confessed without consideration, and by fraud and collusion, for the purpose of hindering1 delaying, and defrauding creditors. Schwed & Newhouse were, for some time prior to the