144
FEDERAL REPORTER,
vol.
4.4.
question is made lUI to the right of the libelant to recover. The liability of the.ship is admitted, and the only question left to the decision of the counis as to the amount of the damages. Upon this question, the libelant referring to the case of Millerv. The W. G. Hewes, 1 Wood8, 363, where $8,000 was allowed. and to the case of The D. S. Gregoryand The George Washington, 2 Ben. 226, where $10,000 was allowed·. If the method of determining the adopted in the case of Miller v. The W. G. Hewes. was followed, it would give the libelant a decree for $17,240, a sum which, in my opinion, would be excessive in a case like the present·. The claim 9f the libel. is $10,000. No two cases of this character can be precisely alike, and, so far as I am able to judge from the evidence before me, the libelant's case is less severe than either of the cases referred to. I am of the opinion that· an allowance of $6,500 will be just in this case. Let a decree for that amount be entered, and the costs to be taxed. ..
THE TRANSFER No. 4.1 . ,1'; ,'I',
SNOW !?THE TRANSFER (Vl8trICt
No.4·
ooun;' E; ,D. New' York. November 11,1890.)
COLLISJOW--BTEAM AND S.lILIN,G VII:SSB.L--,CIl.lNGB 011' COW\SII:.
The tug·Transfer No. 4i with-a car-fioat (lnher port side, left 'Harlem river in the nigbt, bound fOl Jersey City. The tide was ebb. t;he took the usual eourse on Booh _ tide, crossing from the upper point of Blackwell'lI tsland to the Long island Bide. and we,nt down the cbannel on that side. A schooner was coming up the middle of tbe cbannel, with a fair wind. As she neared the tug, she ported. ran to within 100 foo.tcf island shore, and collided with the tow. Held. that the ; aaUBe' of 'the collision was the· schooner's change ofcoune, .andthe tug was 110\ liable.,. ; _ , . " :
PetI!r $. Carter, for ... Pa.ge ac .Taft and. R., D. Benedict,for claimant. ; J. The' resulteq.Jll. the .sinking of.the 1'(0.4, is plainly attributable her course, as required to do missed, and with costs. which gave rise to thi!l action, and which schooner Aaron Snow by the tug Transfer to the fault of the schooner in not holding by law. The libel must. therefore be dis-
In Admiralty.
damages eaused by collision·.
lB,eported by EdwriG. Belledict, EsQ.., of the New York bar.
IN
RE SAN ANTONIO
&I
145
In re SAN ANTONIO & A. P. Ry. Co. (Circttit Court, W. D. '1'exas. November 18,1890.) REMOVAL OF CAUSES-SEPA.RA.BLE CONTROVERSY.
In a i1uitin the nature of a creditor!!' bill, brought in a state court by citizens of the state against a railroad company, also a citizen of the state, the trustee, under a mortgage on ,the railroad, who was a citizen of another state, intervened. Held, that there was no separable controversy within the removal act of l!l88, § 2, providing that one.of se\'eral defendants may remove any SUit, in which "there shall be a colltroversy, which is wholly between citizens of different states, and which can be fully determined as between them. »
In Equity. On motion to remand. This was a suit in' the nature of a creditors' bill, brought in a state court 'by· citizens of the state of Texas against the San Antonio &Aransas Pass Rllilway Company, a corporation of that state. The Farmers' Loan & Trust Company is a citizen of the state of New York, and the trustee under a mortgage on the railroad. A receiver having been appointed by the state court, the trust company intervened, and removed the cause. R. -HOWlfnn and Wm Aubrey, for motion.
M. ,M' Mott,· contra.
PARDEE, 'J., (orally.) The Farmers' Loan & Trust Company was not made a party by the plaintiffs. It has not been called in warranty. Ii shows no liability on its part to protect the defendant. It makes no -claim to the revenues of the railway property nor to its possession. Its sole interest in the case is to assert its lien and the priority thereof. It has no interest in defeating plaintiffs' demands further than to secure priority (01,' itself. T am therefore of the opinion that the Farmers' Loan & Trust Company, intervenor in this cause, is mainly an intervenin/{ plaintiff, and only in a very limited way can be considered as an intervening defendant. Counsel are referred on this point to Noble v. Meyers, 76 Tex. 280, 18 S. W. Rep. 229. In the present case I seriously doubt whether the Farmers' Loan & Trust Company can be considered a defendant at all, within the meaning of the third clause of the second section of the act of 1888, (25 St. at Large, 434.) However this may be, that, in the present cause sought to be removed, there is I am no controversy wholly between citizens of different states, which can be fuJiy 9,ete.rmined as between them. To the plaintiffs' suit, the ant railway company is a necessary party. The plaintiffs' action is in the nature of 11 creditors' bill, and is brought to establish their rights against the railway company. as well as against all lienholders and other creditors. A determination of their rights, as against the Farmers' Loan & Trust Company, is only a small part of their case. Separate defenses do not create separate controversies. within the meaning of the removal act. For adjudicated cases directly in point. see Insurance Co. v. Huntington. 117 U. S. 280, 6 Sup. Ct. Rep. 733. In Graves v. CQ1'bin, 132 U. S.571,lOSup. Ct. Rep. 196. cases settling the proposition are colto remand is granted. v,44F.no.3-10
146
.FEDlJJR4.L ltEPORTER,
vo1.4.4:.
views expressed by Judge sw,te court. For two reasons the suit is not removable, under the act of 1888: First. The Farmers' Loan & Trust Company, which ,seeks the removal, occupies the attitude of an intervening plaintiff. It' is the actor, the complaining as to the cause of action wbichIt seeks to enforce, and cannot be held to be within the meaning of the act a defendant who alone, is aGcorded the right to remove by the terms of the law. Second. If, in h:gal contemplation, tile trust company could be construed, or held, to be,a defenda.nt, it would still be precluded frorn removing the cause, on the ground that there is not in the suit a controversy wholly between citizens of different states, which could be fully determined as between them'. ,To ,the full and final determination of the -controversy ,Johnson and Hansen and the intervenor, the Farmers' 1.0&0 & Trust Company I Ithe,StmAntonio & Pass Railway Comp.anyis not only a proper hut:.anecessaryparty., Tbedebts claimed the railway company 'hy;both, Johnson and Hansllnand the trust company, 'are the principal ,to the existthing,a.nd; the Hens out. ence of the dates, and establish the valhlityof tbEi liens, the debtor's presence before the court is indispensable. But when thedebtQr makes its appearance, as the railway company herein did, upon the original institl1tion:of the suit against {t""we havedirecUy" presented a ·contro.'\ter&Y.notwhoUY hetweep,citi1:ens.-of dtfferentstates"which could he fully determined.. as betweentbeI:(:\'. Upon the hypothesis tha.t the trust company,oouldbeconsid-ered, as 'a defEmdant, the controversy·jaone. between .a. citi!'en of' Rsplaintiff,and llo citi2;en ()fTexas Rl'l,4 'a citizen ,of NewYQrk j as defendantliJihenoe it follows that the $uit is not removable updel't;hethil'd clauS6 ofsection 2 of the statute invokedbltheinter_veningtrust
MAXEY, J., (orally.) I concur fully in the PARDEE in ordering theaallse. to be remanded
'I'
,
WOOD
etal· .'U.CORRyWATER-WO'RKS Co. et aI.
(Cirouit Court, W\D. Pennsylvania. NOvember 24, 1890.) CORPORA.TI0NB-IBBUE OJ!' BONDB-VA.LIDITy-EBTOPPEL.
The Corry 'Water-"WorkB:Company, a corporationo:ttbe state of Pennsylvania, in accordance with a contra¢t>' for the of its works, and with the consent of all its stockholders, expressed by vote at II. meeting called only for the purpose of incroasingits stock, issned to the contractors whobuHt tlle works, in settlement, its; boll-ds. payable $lOQ;QOO,secured by a trust mortgage, and also $l2Q,QOO of stock. The contractors sold the bonds before maturity, in the open market, for a large'urice, thepurohaser having no knowledge of anything affecting their validity. Upon default in payment of interest, the mortgage trustee, under a ppwer conferred by the.mortgage, was pro«;leeding to sell the mortgaged property, when the plaiiltiffs, who had acquired Bome of the stock so issued to the a enjoin the sale upon the that the debt wall not autborlZedoya previous meeting and consent of the Iltock1:).olders, as prescribed by sectiOn 7 artA6, of ttie constitution of PennBylvania,. 'allli the law of thestata; that, in v1 olation of the law; the amount of bonds 'e:JQEleded; !JI\e·ll.alf.of th:e capital stock paid in ;lI.ndthat by the issue to the contractors there was a fictitious increase of indebtednes& wild stock, in violation Of said 'provisiOn. 1,,'J