DDElUL REPORTER,
vol. 43.
THE TEBO V.
J ARLEN. 1 JARLEN.
(DIstrict Oourt, E. ADWRALTY-SALVA.Glll. . '
n:New York.
July 21, IS90.)
The bar.k J. haq passed through a storm, had lost some of her spars and was leaking. When off Barnegat, under sail, and undoubtedly able to s;{l to New York. without assistance, she was taken in tow· by a tug and brought to New York over a smooth sea, the service. occupying from 9;< A.. M. to 6 P. M., and involving no risk or extra labor to the tug. The bark and her cargo was worth $20,500; ·:the tug, $25,000. Helcl, that $4OO'waasufficient salvage.
In Admiralty. Action for salvage. GOQdrich, Deady & GOQdrich, for libelant. Rutler, StUlman & Hubbard, for claimants. BENEDICT ,J. This. is an action to recover for salvage service alleged ·to have been rendered by the tug B. S. Haviland to the·bark Jarlenon ,the 14th of September,1889. The service consisted in tOWing the bark -fronl Barnegat to New York in a smooth sea; the time occupying from ·;9!A. M;"to 6 P. M., and involviagno risk or extra labor on the part of .the.tug. The value of. the barkaIid her cargo was $20,500; the value .or the tugj. $25,000. The libelants desire a decree for ,25 per cent. of ,the value of the bark and cargo. The claimants claim that the value of the service rendered did not exceed $100,' but have tendered 8400, .andpaid the sum into court. This difference between the respect.ive parties arises out of the difference in their estimate of the danger in which the bark was when taken hold of by the tug. The evidence has satisfied me that the danger to which the bark was exposed was very slight. She had been in peril dnring a hurricane, had been leaking,and had lost,her foretop-gallant-mast and jibboom; but she had passed through her peril. When taken hold of by the tug, she was sailing along under maintop-gallant-sail, main-uppermainsail, maintop-mast-stay-sail, foresail, and jib. She was not leaking to any considerable,extent, and was undoubtedly able to sail to New York without assistance. The contention of the libelant that she had signals of distress flying, that the wind was blowing strong, and a dense fog prevailing, is not borne out by the evidence. Her cargo of lumber had shifted, and she had a li!lt, but not so great as to prevent her working without difficulty. The omission to call the American pilot, who was taken on board after the tug had hold of the bark, is commented on by the libelants. But the omission, in a case like this, tells as much against the libelant, upon whom is the burden of proof, as it does against the claimant. In my opinion the $400 tendered by the claimants was sufficient. The libelants may have a decree for $400, with costs up to the time of the tender. t
I1cported by Edward G. Benedict, Esq., of the New York bar.
EVANS II. DILLINGllAIL
177 et 01.
EvANSet al. 1. S.
'V.
DILLINGHAM
(Circuit Court, N. D. Texas.
June 9, 1890.)
REMOVAL Oll' CAUSES-FEDERAL QUESTION-REOEIVERS.
A suit against a receiver appointed by a federal court, brought in a state court without leave of the federal court, is removable, since it involves a federal question. Where au amended petition is filed, which makes a substantially different (mit from that stated in the original petition, the time for removinl/: the cause is to be calculated with to the amended petition.
SAME-ApPLICATION-TIME.
In Equity. On motion to remand. R. S. Neblett, W.J. McKie, and W. S. Simkins, for complainants. L. 0. Alexander and F. O. 1JiJJ.ard, for defendants. MCOORMICK,J. On the 13th day of September, 1889, several citizens of Corsicana brought this suit for injunction, a preliminary injunction having been granted by one of the state district judges, to restrain Charles Dillingham, receiver of the Houston & Texas Central Railway, from removing the division head-quarters of said road, and the machineshops and 'other plant connected therewith, from Corsicana to ;Ennis. The suitwas brought witbout obtaining leave of the court which appointed said receiver. The suit in which said Charles Dillingham was appointed receiver was pending on and before the 3d of March, 1887. A defective citation was served on the defenoant in time:, if the citation had been legal, to compel him to plead at the October, 1889, term of the state district court. for county; that is, on or before the 18th day of October, 1889. On the 14th day of October, 1889, the defendant crossed certain interrogatories to a witness propounded by plaintiffs, and filed certain cross-interrogatories in the state court. At said term of said C<lurt, and on the 18th day of October, 1889, tbe defendant, appearing only for the purpose of moving to quash the citation, filed his motion to quash said citation. This motion, though never acted on, (for reasons hereafter shown,) was manifestly well taken; anti it is admitted by plaintiffs' counsel that the citation was defective, and did not require defendant to anSWer. The defendant also, on the 14th day of November, 1889, filed in the state court a suggestion that the presiding judge of said court was disqualified by pecuniary interest in said suit to hear and try his motion to quash the citation, orany other question in said cause, and on the same day, (November 14th,) filed a written agreemep.t signed by the attorneys of the plaintiffs and the defendant to the effect ,.that the presiding judge was a citizen and resident of Corsicana, and, owned real estate and personal property in said town of the ofat least 86,000. On the 16th day of November the court entered a minute to the effect that the judge, believing himself disqualified on the ground of interest, refused to pass on the motion to quash citation. On the 15th day of March, 1890, defendant 'Charles Dillingham filed his motion in the state court to dissolve the preliminary injunction, and atthe same time filed his answer, beginning with this proteM: v.48F.no.8-12