896
FEDERAL RF.PORTER',
vol. 41.
t1>-is service the Qwner of the Luckenbach asked'$l,OOO,'but expressed. himself willing to take,$500,if paid without suit. The service rendered was a salvage service. The sea was rough. .The Wallace was in some danger of going asbore, and considerable damage to ,both vesBE\ls was to be apprehended if tbey were not separated. The sea was rough, but not so 1;lad but that a small boat came frClmtbe rEivenue cutter al<ing-side oftbe Wa1lace, while in collision with the Plymouth. Tbere: were other tugs in the immediate vicinity who could have been, called upon by the Wallace, and CQuld have done for her all that the Luckenbach did. Ithink, under the circumstances, tbat the sum of &250Jssufficient compensation for the Luckenbach. Let a reference be had to ascertain the amount of ,the damages caused by the collision. For which amount, with &250 fona!vage, the libelant may have a decree.
THESm GARNET WOLSELEY.1 . r· .
BowDJeN
THE SmGAltNET
(Dt8trloc Court, E. D. New YoT1G. Match 98; 1800.) !
BtiKBN.....PImSOlUL INJl1lUBS-UNOOVBuD HATOH-CoNTRIBtrfORY NBGLIGllINOB.
Libelant, a night-watob;man on a steamer, undertook ,to sit down upon a bunker hatCh Without looking to seewhether theoover was on. The proof showed that the hatch,waliloovered, or not, as the neceuity of the ship On this occasion it W3ll unCovered, and libelant fell through to the hold. Bela, that the was due to libelant's negligence, and alibel for his injuries agamaUhevessel shoUld be diimtSsed. ' ,
In Admiralty. Action to recover daml:l-ges for personal injuries. M. L. for libelant. E. B. Oonver8, for claimant. BENEDICT, J. Tbis is an action for personalinjuries sustained by the libelant by, reason of his fallingthrough'a hatdh of the steam-ship Sir Garnet Wolseley. The libelant was: a night-watchman on the At about 9 o'clock in the evening he undertook to sit down upon a bunker hatch upon the main deck, assuming the hatch cover to be on, and without looking to see whether the cover was on or not. The cover was not ani and the man, on sitting down, of course fell back· ward into the hold. The' eviden{)eshows that this hatch was sometimes without cover, and sometimes covered, as the necessity ,of the ship ra-quired. The accident was caused by the libelant's own negligence in not'looking to asoertainwhether therewas a cover there before he under. took to sit down upon it. The libel is dismissed,
'Reported byllldw8ll'd G. :Benedict, Esq., of the NewYork blll'.,
HOLLAND ". HYDE.
HOLLAND et
'UX. t1.
HYDE.
(Oircuit Oo'Urt,D.Oregon. .April 23, 1890.) lI'BDERALOotT.RTS--JURISDIOTJON-PATENT OJ' LANU-CANOELLATION.
This court has no jurisdiction of a suit broughtby citizens of the state of Orl:lgon, against a .citizen of the District of Columbia, to cancel a United States pateutto land to which plaintiffs claim they are entitled to have a patent, wherll tbe groun\l for canceling is fraud alleged to have been committed by the defendBut in 'proC1trlng the issuance of the patent to ODe of the plaintiffs, and where the defendant is claiming the land under conveyances purporting to have been executed by the plaintiffs. Such a suit involves no federal question, and the parties are not citizens of different states. Moreover, there is no equity in the bilL (Bytlabus by the Oourt.)
.
In Equity. Patrick HoUand, plaintiff, in pro. per'.
Joseph Simon, for defendant.
HANFORD, J. The demurr&' to the bill in this case was submitted without argument on the part of the plaintiffs. I have not, after careful consideration, been able to find any ground upon which the case Can be maintained in this court. Upon the face of the bill, it appears that the plaintiffs are citizens of the state of Oregon, and'the defendant is a citizen of the District of Columbia. The case, therefore, is not one between citizens of different states, nor one of which this court can take jurisdiction by reason Of the diverse citizenship of the parties. This proposition has been so often decided, and so long maintained, in the national courts, that it is now entitled to rest as settled law. The object of the suit, as shown by the statements .and prayer of the bill, is to set aside a United States patent for a tract of land, not on the ground of any error or misconstruction oflaw, but solely on the ground of a fraud on the part of the defendant, (and other persons not identified,) in procuring the issuance of the patent to one of the plaintiffs. The only issues tendered by the bill are issues of fact; hence the case is not one arising under the constitution or laws or any treaty of the United States, and it is not, by reason of the subject-matter thereof, within the jurisdiction of the court. The purpose to be accomplished by canceling the patent is not shown by any direct averment in the bill. The necessary inference, however, is that the plaintiffs seek to have one patent already issued to Patrick Holland, under a cash entry which they disclaim to have made or authorized, set aside, in order that they may obtain another patent, conveying to the same Patrick Holland the title to the same land under a cash entry of a date prior to the entry which they repudiate. Equity, to correct an error or give relief from the effects ofa fraud, does not proceed by soindirect a course as to cancel one conveyance in order that another may be substituted, so as to convey the same property, from the same grantor, to one having rights superior to the first grantee, but will, in a proper case, in the most direct manner, give effect to the original conveyance SO that it shall inure to the benev.41F.no.15-57