J'EDERALREPORTER,
vol. 38.
GRING 11.
A
CARGO OF LUMBER.!
-;1
(Di8eriot Cou'!'t, E. D; New'Yo'!'k. March 13,1889.) '
SilIPPING-rFBEIGHT LIEN-WAIVER.
A,vessel discharged a cargo of lumber in Augus,. and ,during the delivery Bom,> !portions were carted away by persons to whom it had been sold, withouto!:ljection from the vessel. and no notice was given to the consignee or " his !vendee of any intention to hold the lumber, for freight. and no steps were " ,taken, to e,nforce a lien for freight until late in September. Held, that the I 'nep. '
In Admiralty.
, Hylxlnd, & Zabriskie, for libelant. R. D. Benedict, for claimant. BEN:Jj:DtcrtJ. This is all actionto enforce a lien forfreight against a cargo of sprticelumber transported' in the canal-boat Silver Wave from Etchirn, nellr Quebec, Can., to the port of New York. By the bill of lading the lumber was consigned to Dunbar & Co." of New York. Upon theatrival' of the vessel at New York, and reporting to Dunbar & Co." theydirected that the be delivered to William Richenstein, Newtbwn Qteek. The Vessel, proceeqed to Newtown Creek, lind there the lumber was dispbarged at the lumber-yard of RiCJhenstein. After the lumber had been, dischittged; the libelant went to the office of Richenstein with the inten.ti9n of'getting his freigh t, and was, there told that' the freight was to be prtid hyDunbar & Co., and that 'there was a shortage in thelumbefdeliVe,red. 'Thereafter the libelant was paid by Dunbar & Co. the<amount of his' freight. less $20 for shortage. It appears in evidencethat, the lumber, w,hen delivered, was placed in a' lum:ber-yard; that during the delivery some of it was carted away by persons t<> whom :Hhad been ,sold by Richenstein. No objection waS made to this by the libelant, nor at any time was any notice or intimation given to Dunbar &qo. or to Richenstein pian intent to hold. the cargo for freight. More:,over, no steps were taken to enforce a lien until September 22,' 1887. 'although the discharge had been Mncluded in August. Such a state of 'flloC,ts does not permit the inference, that an existed betw.een the libelant and the consignee that the of the lumber at 'RigheJTl,stei'n's lumber-ynrdshould not be regarded as a waiver of the fieri. The libel must be dismissed, and with costs. r;· . .
Edward G. . l1 1 ."
Esq., of the New York bar·
t:
J,l'VERM.OTT 'II. CHICAGO
&;
N. W. RY. CO.
529
McDERMOTT
v.
CHICAGO
& N. W. Ry.
CO.
(Circuit (Jourt, No D. [(}'lJ)a, E. D. May 8, 1889.) REMOVAL OJ!' CAUSES-LocAL PREJUDICE.
The right to a removal of a cause under the local prejudice clause of the act of August 13, 1888, § 2, is not dependent on the amount involved, there being no provision in relation thereto in Buch clauBe.
At LaW. On petition for removal because of prejudice and local influence. Action by John McDermott against the Chicago & Northwestern Railway Company. Hubbard & Dawley and Henderson, Hurd, Daniels & Kie8el, for petitioner.
SumAS, J.The above-entitled cause is now pending in the district .oo'Qrt of Clinton county , Iowa; the damages claimed'therein being the sum of $499, the plaintiff being a citizen and resident of the state of Iowa, and the defendant a corporation created and .organized under the taws of the state of lllinois.A petition asking the removal of the action into this courton the ground of prejudice and local influence has been filed on behalfofthe'defendant, and the showing made in support thereof is sufficient to justify the granting the order of removal if the court -can thus take jurisd,iction of a cause involving no more than $499. The case, therefore, presents the question whether, under the provisions of the act of August 13, 1888, the right of removal on ground of prejudice and local influence is dependent upon the amount involved in the controversy. '. In case of Fales v. Ra1lwayOo., 32 Fed. Rep. 673, t had occasion to construethepro\-jsions of the act of March 3, 1887. and in so doing held that there was no limitation by way of amount upon the right of removal upon the ground of local influence and prejudice. Since the hearing in that case the act of March 3, 1887, has been supplanted by that of August 13, 1888, passed for the purpose of freeing the act from the errors and mistakes that had been incorporated in the enrolled bill, and I have raexamined the question as presented by the phraseology found in the amended act', and in the light thrown thereon by the cases since reported. The decisions in the circuits are not in harmony. The leading decision holding adversely to the right of removal unless the amount involved ceeds$2,OOO, is that rendered by Mr. Justice HARLAN in Malone v. Rail'foad Co.; 35 Fed. Rep. 625, a case pending in the circuit court for North Carolina. It will be borne in mind that in section 2, art. 3, Const. U. ,S., which defines the extent of the judicial power that may be exercised by the courts of the United States, there is not found any limitation by way of amount. When congress, thflrefore, provides by act 'for the e.xercise by the circuit courts of jurisdiction over controversies coming 'within the constitutional grant of power! such jurisdiction will exist as to all such controvt:rsies, regardless of the amount involved therein, unleSli the act providing for the exercise of the jurisdiction provides a v.38F.no.7-34
