688
FEDERAL REPORTER,
vol. 43.
Moreover the contract, while it postpones payment of wages by the employer to a future definite day, also contliinsprovisions to the advantage of the employe; as, for instance, it gives the libelanUheright to demand on the 25tp. of September wages up to the 12th of September, notwithstandingthefact that he had been discharged for drunkenness on the latter date.· To such a contract the decisions made in Javor of seamen upon ships do not seem to me to be applicable. So far as the wages earnedafM:' the writtenco'ntrlict ,are concerned, the suit will be held to be pl'einature. ; '<:
TIn ·ROOlUWAY.: " ; .," THE SEABOA;a.p.
et at.. v.THE BRENNAN' 'd'c4·· 'v. , 'i ""
ROCKAWAY. SEABOARD.
TliE
(Df.8trict OoUh't, ; " , E.D.Ne:Wyork. October I, .1890.) ., :', .l '' .· BACKING.
(lOLLISJOlll.,...STIlIAM-
wasgoiI).gthrOu,gl;1 the. Kill von KUll, bound for New York, ona some 5OO.'feEltofftheNew The propellerS. h'ad been lying at a dock on the New Jersey\!h6re, and started to back out into tlhe'stream, anda6ross the. course,of the R.;8& the latter approached, The S. gave no signal to indicate her iPtent4on, and continuedto;l!89k almost to the,momElntof collision. TheR. backed as ¥QlI. intention tbfjl S. was seen, but the ves.selscame tog'ether. BeliL, that the hollision was thefauttof th.e S; ,' . , J 'i",";,'
'.'
,1:,.'
In Admiralty. for damages caused by collision between thElsteam-bdats <Rockawayll.r1d Seaboard.' The steam,poat Rockaway was going th'rough the Kill von KQ1l, bound for New York, some 500 feet from the New Jersey coast.' The tug Seaboard, lying at a pier on the New Jersey shore, attem.pted to back out as but gave no signals of R9ckaway reversed and backed as soon as the intent of the Seaboard was (Uscovered,but a collision. followed . . Gpodrich, Dt:ady &: Good;:{Ph, for the Seaboard. r. WMtehead, Parker&: Dexter, for the Rockaway. 1.1 :i:: '.'. :' ._,' ", '.: ", " .',' I
:0]
The collision whicttgave rise to this snit was, in my : 'Q8.us,ed by the .fault of the directly under the tl)o','Ysof steam-boat, tpen in plain' sight, without any ,having. been given the to show an intention on,. the ,'part' qf the, tug t6 back across her bow,:, ' I see no fault oothe part of the " There was n() time aftef'. the' in tention of the tug to cross .the pows of the was manifes't 'for the steamer to do more than libel agaibst the Rockaway must be dismissed, and in the . the Se,abpard there niust be a decree for the libelant, with aOQrdeiof ' . ' 'l'RepWted"bY Edward G. Benedict, Esqi('Ot the New' York bar.
BERMAN fl. 'M'KINNEY.
689
HERMAN tI. MCKINNEY
et al.
(Circuit Court, D. South Dakota, E. D. November 8,1890.) COURTS-ADMISSION OP STATES-TRANSFER OP CAUSES.
The right to remove t6 the federal courts causes pending in the territorial court. of Dll.!l;Qta when the two states were admitted to the Unipn depends not upon Act Cong.Aug.13, l888, upon removal of causes in l1;eneral,but upon the enabling act of Feb. 22, 1889, § 23, which provides that cases which would have been of federal jurisdiction, when brought ,if such courts had existed shall be removed upon the request of either party, andbence a motion to remand cannot be sustained upon the ground that the removal was made at the demlLlld of .. defendant residing in the ,state. '
to remand. McMartin eft, Carland, ,for complainant. Kietp, &; Baies, and Winsor Kittredge, for defendants.
J. The complaint in this cause was filed November 2,1888, liistrict court of county, Dakota territory. the comthen being 8 citizen of the state (,)f New York, the defendant being a citizen of Dakota territory, and the defendant corporation, then a natiqnal bank, created under the statutes of the at Sioux Falls, United States, 8p.d havingits principal place of in the the'p territory of Dakota. The citizenship and residence of the seyera} has, remained unchanged ,except as that of the defendants has been affected by the admission of South DakQta as one of the states of the federal Union, under the provisions of the act of congress approved and commonly reJerred to as the "Omnibus Bill." February 22, Under the constitution and laws of the state of South Dakota, the court of original trial jurisdiction is known as the "circuit court." Upon the admission of the state, the record and files in this cause passed into the custody of the state circuit court, and on the 10th day of May, 1890, the defendants filed a written request in court for the transfer of the cause to this court, ;,vhich request was granted, and the papers and record have been in due form transferred to and docketed in this court. Complainantnow moves for an order remanding the case to the state court. on the ground that this court has not jurisdiction thereof; that the. defendants, on whose reqpest it was brought into this court, were, when the suit was brought, residents of the then territory of Dakota, and, when the removal was reqtiested, residents of the state of South Dakota; and'that a removal from a statE: court to this court cannot be hadtipon petition Of a resident of this state. The right of removal in thlsoause is not dependent upon the aot of congress of August 13, 1888, ilmending the act of March 3, 1887. It depends upon the provisions of the act uuder which South Dakota was admitted to the Union, and which, in .terI11s,mad'e; provision for the disposition of causes pending in the courts of flleterritory. By the twenty-third section of that act it is, in subthat cases which would have been of federal jurisdiction stance, whe:n'brCWg;lh, if S'outh pakota had then been a state with a federal court v.43F.no.11-44
in,
,