91 FEDERAL REP.ORTJl1R.
apperIan. 'conld 'not recover for a total loss,' if, in' fact, the loss was only partial. If limited, to: ,a recovery as' for a partial loss, they would gtill be entitled to recover their whole loss, which would include cost of raising, repairing, net profits of pending voyage, and the value of the use of the vessel pending repairs. It was upon t!J.is basis that damages were assessed, and the appellants, the owners of the Siberia and Mather, have thus by the fact that the loss was partial, and not total. The amendment, so far as it set out the fact that the loss was not total, but partial, was possibly not necessary to permit a recovery of the partial 108s under an averment that the loss had been total. There remains the technical question as to whether the claim for demurrage had passed to the insurer as an ·effect of an abandonment to the underwriters, and an acceptance by them of such abandonment. We are inclined to the opinion that this abandonment was only for a constructive total loss, and should not have the effect of a sale, even though given effect by 'a formal assignment. The law would look deeper than mere appearances, and see:the 'real fact lying at the bottom. But it is only' necessary to .sugtgel:lt .this, as we do not decide it. Whatever the effect of this technical abandonment upon this claim for demurrage, the difficuItieswere met when the Iibetwas amended so as to show that the damages sought were such as had been sustained by both owners and underwriters, and that for the latter the suit was as trnsteesfor the insurer. The underwriters were substituted to the claim of the owners against the wrongdoers for the partial loss actually sustained. This claimincIuded demurrage. This action the underwriters might sustain in .the IllUne 'of the owners for. their benefit, and so the owners:may sustain such a suit as·trl1stees for the insurer. It is not plain that it is necessary to aver that the suit is conducted for tlie'benefl.tdf the insuner; but any doubt was removed by the amenihrient of the libel. Hall v. Railroad 0013., 13 Wall. M7';RaiIway' Co; 'v. MancheSter Mills, 88 Tenn. 653-6£3;14 S. W. 314. : To award the wh01e damages to the libelants,for themselves ahd as trustees for the insllJlers .will not subject the appellants to the peril' of but willconcIude! tM: insurers. : Libelants filed an exceptiolll that the"a:llowance for repairs was inSUfficient, and did not cover certain repairs made by the purchasers of Ohio; land :aDo'ther, ,because ,theaUowance for demurrage was insufficient,·'1'.m;ii oommissioner:.regardetll the proof as insufficient to sustainthe'contention ,coveretilby these: exceptions. No such dear Jilistake of !fautis)shownas,will'justify the 'setting asideoftheconclu!idons of therepon; The Gayuga; 16U;iSJApp. 577, 8C.10. A. 188, and 59 Fed.< 483/. The same rUla, mut be applied .to thtbremaining exceptions filed by the clain;J.antsof:!lJhe Siberia,andMatheti : The report of' Mr. Davison, the 'commissionerI' who iuepol'ltedthe damages, isa particularly: clear tlfThe 'Cayuga, supra, no and,able 'OnelJi I lJnden the role in sufficient l'oascMt: bas been shown for. convioting ,the coinmissionerof anlY lTpr ofifact. ,The r be' reversed as' to the OhiojH and remanded; :withildirections to: ,enter a decree agahist ;the $iberia :and Mather for .all: the damages and 'costs, thQseof this appeal. .
GRAND TRUl\K RY. CO.V. CEl'>TRAL YERMOXT R. CO.
S)IITII v. FIFIELD.
(Circuit Court or Appeals, Sevcnth Circuit. January 3, 1Sro.)
JURISDICTION OJ' FEDERAL COURTS ASSIGNEE. ALLEGATIONS 01' CITIZENSHIP -
A circuit or district court Is without jurisdiction of a suit brought on 6 nonncgotiable contract by an assignee, where the declaration fails to show that the suit might have been prosecuted In that court If no assignment had been made. '
In Error to the Circuit Court of the United States for the Western District of Wisconsin. Ray S. Reid, for plaintiff in error. M. G. Jeffries, for defendant in error. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges. PER CURIAM. The plaintiff in error, claiming title as assignee, brought this action in the circuit court of the United States for the Western district of Wisconsin to recover upon a nonnegotiable con· tract or chose in action; but the declaration, while alleging the diverse citizenship of the parties, fails to show that the suit might have been prosecl1ted in that court if no assignment had been made. If we may treat the averment of the complaint that the assignor of the plaintiff in error was at the date of the contract "of the city of Janesville, county of Rock, in the state of Wisconsin," to be an averment that he was a citizen of the state of Wisconsin, he could not have brought an action on the contract in a court of the United States. The court below, therefore, had no jurisdiction of the case. Railroad Co. v. Davidson, 157 U. S. 201, 15 Sup. Ct. 563. The judgment is reversed, at the cost of the plaintiff in error. Judge SBOWALTER did not participate in the decision of thil!o case.
GRAND TRUNK RY. CO. v. CENTRAL VERMONT R. CO.
(Circuit Court, D. Vermont.., ..January 27, 1899.)
RAILROAD RECEIVERSHIP-INTERVENTION BY CREDITORS CLAIMING PREFERENCB -PLEADING. .
Holders or claims against a railroad In the hands of receivers, who do not come within the terms of a general order requiring the receivers to pay claims- for labor and supplies within six months, have no standing to file a motion for payment of their claims in full. and can only be heard upon a petition or Intervention setting out the facts on which their claim to preferential payment Is based In accordance with the rules or pleading.
Hearing on petitions of intervention of the Ashton Valve Com. pany and' others, as creditors, asking payment.