cannot well be raised by demurrer. It can only be raised by way of exceptions to the bill. Although the clause in question, under the view we take of it, has no place in the bill, for the reasons above stated, yet we do not see how we can well sustain this point of the demurrer. If I were the pleader in the case I would file a new bill omitting the objectionable matter. As it is, the complainants will have to file a new bill, inasmuch as the first point of the demurrer is sustained, and we will make no order on the other point of the demurrer. Let the entry be that the first point of the demurrer is sustained, with leave to complainants to file an amended bill on or before October 20th. THE MINEOLA.1 MAGGIOLO v. THE MINEOLA. (District Court, E. D. New York. November 28, 1890.) NEGLIGENCE-PERSONAL INJURY-DAMAGES. By admitted negligence, libelant, a sailor, 32 years old, and a sound man, earning from $12 to $20 per week, sustained a fracture of the ankle, and a rupture, which confined him to the hospital for 85 days, and permanently injured him, and incapacitated him for heavy work. Held, that he should recover $6,500. In Admiralty. Suit to recover damages for personal injuries. Converse & Kirlin, for claimant.. BENEDICT, J. This is an action to recover damages for personal injuries done to the libelant by the falling upon him, in the hold of a ship where he was working, of bags of sugar weighing about 800 pounds. The immediate result was the breaking of his ankle, and a rupture. By reason of these injuries, he was confined in the hospital for 85 days, and for 5 months after he came out of the hospital it was difficult for him to walk by the aid of a stick. He is 32 years of age; was a sea-faring man in Italy; arrived in this country five or six months before the accident, and after his arrival he worked as a longshoreman, earning from $12 to $20 per week. In Italy, he earned about $16 per month and his board. Before the accident, he was a sound man. Since the accident, he suffers pain, and seems to be permanently incapacitated for heavy work. He has tried to do some easy work, but, so far, has failed, not being able to go up and down stairs without hanging on to something. Reputable physicians testify that the injured leg is smaller than the left, with a certain amount of stiffness and rigidity in the ankle-joint, which is permanent; that he is not able to do hard work; that he is able to use his hands, but is incapacitated from heavy work by the rupture. No 1Reported by Edward G. Benedict, Esq., of the New York bar. question is made as 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 court is as to the amount of the damages. Upon this question, the libelant referring to the case of Miller v. The W. G. Hewes, 1 Woods, 363, where $8,000 was allowed, and to the case of The D. S. Gregory and The George Washington, 2 Ben. 226, where $10,000 was allowed. If the method of determining the damages 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 of 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. costs to be taxed. Let a decree for that amount be entered, and the THE TRANSFER No. 4.1 SNOW v. THE TRANSFER No. 4. (District Court, E. D. New York. November 11, 1890.) COLLISION-STEAM AND SAILING VESSEL-CHANGE OF COURSE. The tug Transfer No. 4, with a car-float on her port side, left Harlem river in the night, bound for Jersey City. The tide was ebb. She took the usual course on such a tide, crossing from the upper point of Blackwell's island to the Long island side, and went down the channel on that side. A schooner was coming up the middle of the channel, with a fair wind. As she neared the tug, she ported, ran to within 100 feet of the Long island shore, and collided with the tow. Held, that the cause of the collision was the schooner's change of course, and the tug was not liable. In Admiralty. Suit to recover damages caused by collision. Page & Taft and R. D. Benedict, for claimant. BENEDICT, J. The collision which gave rise to this action, and which resulted in the sinking of the schooner Aaron Snow by the tug Transfer No. 4, is plainly attributable to the fault of the schooner in not holding her course, as required to do by law. The libel must therefore be dismissed, and with costs. 1 Reported by Edward G. Benedict, Esq., of the New York bar. In re SAN ANTONIO & A. P. Ry. Co. (Circuit Court, W. D. Texas. November 18, 1890.) REMOVAL OF CAUSES-SEPARABLE CONTROVERSY. In a suit in the nature of a creditors' 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 1888, § 2, providing that one of several defendants may remove any suit, in which "there shall be a controversy, 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 Railway 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. Houston and Wm Aubrey, for motion. M. F. Mott, contra. It PARDEE, J., (orally.) The Farmers' Loan & Trust Company was not made a party by the plaintiffs. It has not been called in warranty. It 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. has no interest in defeating plaintiffs' demands further than to secure priority for itself. I am therefore of the opinion that the Farmers' Loan & Trust Company, intervenor in this cause, is mainly an intervening 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, 13 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, I am satisfied that, in the present cause sought to be removed, there is no controversy wholly between citizens of different states, which can be fully determined as between them. To the plaintiffs' suit, the defendant railway company is a necessary party. The plaintiffs' action is in the nature of a 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 For adjudicated cases directly in point, see Insurance Co. v. Huntington, 117 U. S. 280, 6 Sup. Ct. Rep. 733. In Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. Rep. 196, cases settling the proposition are collected and reviewed. The motion to remand is granted. act. v.44F.no.3-10 First. The MAXEY, J., (orally.) I concur fully in the views expressed by Judge PARDEE in ordering the cause to be remanded to the state court. For two reasons the suit is not removable, under the act of 1888: Farmers' Loan & Trust Company, which seeks the removal, occupies the attitude of an intervening plaintiff. It is the actor, the complaining party, the plaintiff, as to the cause of action which it seeks to enforce, and cannot be held to be within the meaning of the act a defendant who alone is accorded the right to remove by the terms of the law. Second. If, in legal contemplation, the trust company could be construed, or held, to be, a defendant, it would still be precluded from 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' Loan & Trust Company, the San Antonio & Arkansas Pass Railway Company is not only a proper but a necessary party. The debts claimed against the railway company by both Johnson and Hansen and the trust company, are the principal thing, and the liens but an incident; and, in order to adjudge the existence of the dates, and establish the validity of the liens, the debtor's presence before the court is indispensable. But when the debtor makes its appearance, as the railway company herein did, upon the original. institution of the suit against it, we have directly presented a controversy not wholly between citizens of different states, which could be fully determined as between them. Upon the hypothesis that the trust company could be considered as a defendant, the controversy is one between a citizen of Texas, as plaintiff, and a citizen of Texas and a citizen of New York, as defendants; hence it follows that the suit is not removable under the third clause of section 2 of the statute invoked by the intervening trust company. WOOD et al. v. CORRY WATER-WORKS Co. et al. (Circuit Court, W. D. Pennsylvania. November 24, 1890.) CORPORATIONS-ISSUE OF BONDS-VALIDITY-ESTOPPEL. The Corry Water-Works Company, a corporation of the state of Pennsylvania, in accordance with a contract for the construction of its works, and with the consent of all its stockholders, expressed by vote at a meeting called only for the purpose of increasing its stock, issued to the contractors who built the works, in settlement, its bonds, payable to bearer, amounting to $100,000, secured by a trust mortgage, and also $125,000 of stock. The contractors sold the bonds before maturity, in the open market, for a large price, the purchaser having no knowledge of anything affecting their validity. Upon default in payment of interest, the mortgage trustee, under a power conferred by the mortgage, was proceeding to sell the mortgaged property, when the plaintiffs, who had acquired some of the stock so issued to the contractors, filed a bill to enjoin the sale upon the grounds that the debt was not authorized by a previous meeting and consent of the stockholders, as prescribed by section 7, art. 16, of the constitution of Pennsylvania, and the law of the state; that, in violation of the law, the amount of bonds issued exceeded one-half of the capital stock paid in; and that by the issue to the contractors there was a fictitious increase of indebtedness and stock, in violation of said constitutional provision Held, (1) That as all the stockholders of the water-works company when assembled voted in favor of the issue of the bonds, neither the corporation nor the plaintiffs had any standing to complain of a want of compliance with the directions of the constitution and statute, as to previous notice to and the consent of the stockholders at a meeting called for the purpose. (2) That the corporation having received and enjoyed the fruits of its mortgage bonds, it was not competent for it, or the plaintiffs, to assail their validity in the hands of a bona fide purchaser for value, on the ground that the issue was in excess of one-half the capital stock paid in. (3) That as the proofs show that the actual expenditure by the contractors was greatly in excess of the whole issue of bonds, there is really no ground for the assertion that the indebtedness so created was fictitious; and if the construction contract, as a whole, offended against the constitutional and statutory provisions here invoked, the corrective power resides in the commonwealth, which alone can now complain of the completed transaction. (4) That the bill of complaint should be dismissed. In Equity. Samuel Dickson and R. C. Dale, for complainants. George Shiras, Jr., and Johns McCleave, for defendant Farmers' Loan & Trust Company. ACHESON, J. On the 29th day of March, 1886, the firm of Samuel R. Bullock & Co. and the Corry Water-Works Company, a corporation of the state of Pennsylvania, entered into a contract whereby the former agreed to construct for the latter water-works in the city of Corry, Erie county, Pa., according to certain plans and specifications, and to pay all the expenses, legal fees, and salaries, which might be needed to maintain and operate the works for a period of six months after completion, and to pay the first six-months interest,-viz. $3,000,-on the hereinafter mentioned mortgage bonds of the water company; and, in consideration thereof, the water-works company agreed to issue and deliver to said Bullock & Co. $100,000 in bonds, and $125,000 in the full paid-up non-assessable stock of the water-works company. Bullock & Co. proceeded to construct the water-works, and fulfilled their part of the contract, and the water-works company issued and delivered to them the bonds and stock, as agreed on. The bonds bear date April 1, 1886, are each of the denomination of $1,000, and are payable to Samuel R. Bullock & Co., or bearer, on the 1st day of April, 1916, with interest coupons annexed payable to bearer, semi-annually, and the bonds are secured by a mortgage, or deed of trust, of even date covering all the property, real and personal, rights, privileges, and franchises of the water-works company, executed and delivered by said company to the Farmers' Loan & Trust Company, (defendant in this suit,) a corporation of the state of New York, as trustee. The last-named company accepted the trust, and the mortgage, or trust-deed, was duly recorded in the county of Erie, Pa., on April 13, 1886. In the month of October, 1886, the National Water-Works Investment Company, a corporation of the state of New York, purchased from Samuel R. Bullock & Co. all of said bonds, together with $50,000 of their said stock, for the cash price. of $90,000, which sum was paid to Bullock & Co. by said investment company upon the delivery of the bonds, and said bonds are still owned by that company. The water-works company made default in the payment of the interest on said bonds, due April 1, 1889, and thereupon, |