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T. M. Gill, for claimant.
PARDEE, J. The case presented to this court, growing out of the collision of the tug Nicholls and the libelant's lugger, presents only questions of fact. The correct decision of these questions of fact depends upon the credibility to be given the witnesses on both sides. The important fact in the case is whether the libelant's lugger unnecessarily and improperly changed its course when in front of the defendant tug. After a careful and painstaking examination of the whole case, comparing and weighing the evidence given, I am unable to reach an opinion contrary to the findings of the district judge, and therefore affirm the decree given by the district court. In cases involving only facts, and the proof of these facts resting upon conflicting evidence and the credibility of witnesses, where there is no preponderance of evidence, nor additional evidence offered on appeal, the circuit courts in admiralty do not on appeal disturb the decrees of the district court. For both reason and authority, see The Thomas Melville, 37 Fed. Rep. 271, 36 Fed. Rep. 708; The Saratoga, 40 Fed. Rep. 509. The following decree will be entered in this case: This cause came on to be heard upon the transcript of appeal, and was argued. On consideration whereof it is ordered, adjudged, and decreed that the libelant, H. Duncan, do have and recover from James Sweeney, owner of the tug-boat Gov. Francis T. Nicholls, claimant in this cause, and from Charles A. Miltenberger, surety of said Sweeney on the bond of release in solido, the sum of $150 damages, with 5 per cent. interest from judicial demand, to-wit, from March 9 1889, until paid; and all costs of the district and circuit courts.
THE TRANSFER No. 4.1
BROOKLYN & N. Y. FERRY Co. v. THE TRANSFER No. 4.
(District Court, E. D. New York. December 8, 1890.)
COLLISION-STEAM VESSELS CROSSING-DUTY TO HOLD COURSE.
Where a tug, having the right of way over a ferry-boat on a crossing course, whistled to indicate that she would cross the bow of the ferry-boat, but immediately changed her wheel to swing away from the ferry-boat, and continued swinging until the vessels collided, it was held that the collision was the fault of the tug in not holding her course.
In Admiralty Suit for damage by collision.
Reported by Edward G. Benedict, Esq., of the New York bar
BENEDICT, J. This action is brought by the Brooklyn & New York Ferry Company, owners of the ferry-boat Alaska, to recover damages for injuries done to that ferry-boat by the tug Transfer No. 4, on the 10th of August, 1889. The collision occurred about 10:40 P. M. The night was clear moonlight, and the tide was strong ebb. The ferry-boat moved out from her bridge on the New York side blowing a long whistle as she moved. As soon as she reached the mouth of her siip, the Transfer No. 4 was disclosed moving up the river with a car-float on her starboard side. The ferry-boat blew two whistles, and kept her speed under a starboard helm. The tug put her helm a-port and reversed her engines. The result was that the tug came in contact with the starboard side of the ferry-boat 30 or 40 feet from her stern, doing the damage sued for. The testimony of the pilot of the tug makes a clear case of fault on the part of the tug. The vessels were on crossing courses involving risk of collision, and the ferry-boat had the tug upon her own starboard side. Under these circumstances, according to the contention of the tug, it was the duty of the ferry-boat to avoid the tug. But if this be so, it was also the duty of the tug to hold her course and permit the ferry-boat to choose whether to go astern or ahead of the tug. Instead of doing this the tug undertook to dictate to the ferry-boat. Her pilot testifies that when he saw the ferry-boat coming out he blew one whistle because, as he says, “I wanted to go ahead of him. I wanted him to stop," and instantly ported his helm; and although he received a signal of two whistles from the ferry-boat in reply to his one, he answered with a second signal of one whistle and kept porting, so that at the collision both vessels were heading towards Brooklyn. This evidence from the tug makes a case of fault on the part of the tug. I cannot find fault in the navigation of the ferry-boat. She, according to the contention of the tug, had the right to elect whether to go ahead of or astern of the tug. She determined to pass ahead of the tug, and the fact that the blow was made within 30 or 40 feet of her stern shows that if. the tug had not changed her course the ferry-boat would have passed ahead of her in safety. The pilot of the ferry-boat says that he determined to go ahead of the tug, because he knew that any other course would result in collision, and I am not able to find upon the evidence that his conclusion was wrong. It is not, therefore, a case of choosing the most dangerous of two courses, but rather of choosing the least dangerous course, and one which, as the result proved, would have averted collision if the tug bad not altered her course in the manner above stated. There must be a decree for libelant.
CURNOW v. PHENIX Ins. Co.
(Circuit Court, D. South Carolina. December 11, 1890.)
REMOVAL OF CAUSES-MOTION TO REMAND.
Where a cause has been removed from a state to a federal court upon defend. ant's petition, alleging diverse citizenship, plaintiff's petition to remand, denying the allegation of diverse citizenship, will be treated as a traverse of the petition to remove, and the motion to remand will be decided upon the trial of the issue thus made.
At Law. Motion to remand.
SIMONTON, J. This action was commenced in the state court. been removed into this court upon the petition of the defendant solely upon the allegation of diverse citizenship. The plaintiff thereupon filed in this court her petition, in which she denies diverse citizenship, and alleges that she is a citizen of the state of connecticut, under whose laws the defendant was incorporated. She now moves to remand the cause to the state court. The defendant excepts to this mode of proceeding, and insists that the motion to remand admits the facts set out in the petition for removal. Counsel relies on the cases of Buttner v. Miller, 1 Woods, 620, and Texas v. Railroad Co., 3 Woods, 308; that the only mode of obtaining the relief sought is by plea in abatement, (Coal Co. v. Blatchford, 11 Wall. 178,) or a traverse of the allegation of citizenship. Whatever may be the result of a motion to remand unsupported by petition or affidavit, the present is not that case. The plaintiff has filed her petition, denying the statement of the defendant as to the citizenship of the parties, and, alleging that both the plaintiff and defendant are citizens of the same state, bases her motion on these facts. She challenges the jurisdiction of this court, and gives the ground for the exception. Under these circumstances it is the duty of the court to examine into the question. King Bridge Co. v. Otoe Co., 120 U. S. 225, 7 Sup. Ct. Rep. 552; Morris v. Gilmer, 129 U. S. 316, 9 Sup. Ct. Rep.. 289; 18 U. S. St. at Large, 472; Nashua & L. R. Corp. v. Boston & L. R. Corp., 136 U. S. 373, 10 Sup. Ct. Rep. 1004. The issue is made up from contradictory statements made by the parties. Let the petition to remand be filed, and be treated as a traverse of the petition to remove, and let a day be set for the trial of the issue made.
NIBLOCK et al. 0. ALEXANDER et al.
(Circuit Court, D. Indiana December 10, 1890.)
1. REMOVAL OF Causes—LOCAL INFLUENCE-AFFIDAVIT.
The affidavit of defendant's attorney for the removal of a cause from a state to a federal circuit court, couched in the generai terms of the statute, with the additional averment "that affiant knows the facts of such prejudice and local influence, and makes this aftidavit from such knowledge, ” is insufficient under Act Cong. March 3, 1987, requiring that "it shall be made to appear” to the circuit court that
such prejudice or local influence exists. %. Same-DIVERSE Citizenship.
Under that act, permitting the removal, when there is a “controversy between a citizen of the state in which the suit is brought and a citizen of another state, & removal cannot be bad when the suit is brought in Indiana by two plaintiffs, one a citizen of Illinois, and the other of Indiana, against a citizen of Texas.
At Law. On motion to remand.
Woods, J. This cause was removed from the state court upon the petition of the defendant John S. Alexander, who is a citizen of Texas, his co-defendants being one of them a citizen of Pennsylvania and the other a citizen of Indiana. Of the plaintiffs, Niblock is a citizen of Illinois and Zimmerman of Indiana. The suit is to enforce an arbitration bond executed by the defendants to the plaintiffs, and the plaintiffs are jointly and equally interested in the relief sought. The removal was obtained upon the ground of prejudice and local influence. Aside from the citizenship of the parties, the proof of prejudice or local influence can hardly be deemed sufficient. There is conflict in the decisions on the subject, but the opinion of Justice HARLAN, as declared in Malone v. Railroad Co., 35 Fed. Rep. 625, is controlling in this circuit. Alter reviewing the statutes, he says:
“I am of opinion that congress did not intend to vest the circuit courts of the United States with authority to take cognizance of a case pending in a state court upon the ground of prejudice or local influence against the defendant, a citizen of another state, unless the circuit court, in some proper way, found as a fact that such prejudice or local influence existed. And the simple affidavit by an officer of a defendant corporation, stating in general terms that it cannot, from prejudice or local intluence, obtain justice in the state courts,-no opportunity having been given to the plaintiff, by notice, to controvert such statement,-ought not to be accepted as sufficient evidence of that fact."
For cases touching the question, see Cooper v. Railroad Co., 42 Fed, Rep. 697. The affidavit in support of the petition for removal of this cause was made by the petitioner's attorney, and is in the general terms þf thy statute, except that it contains the statement "that affiant knots the facts of such prejudice and local influence, and makes this affidavi from such knowledge." But this necessarily is only an expression of opinion, and, without a statement of facts to justify it, means no more than if the affidavit had conformed to the language of the act of March 3,
1875, “that he has reason to believe and does believe," etc. The present act says: “When it shall be made to appear to said circuit court," etc., and the change of phraseology seems to me to require the interpretation which Justice Harlan has adopted. In Rike v. Floyd, 42 Fed. Rep. 247, an affidavit was held insufficient on grounds quite applicable here. See, also, recent decision of the supreme court in Ex parte Pennsylvania Co., 11 Sup. Ct. Rep. 141, (decided December 22, 1890.) Whether or not, if the showing of prejudice were prima facie good, the court ought to consider the counter-affidavits, which have been filed, or should sustain the motion made to reject themn, need not be considered.
There is another and more conclusive reason why the court cannot take jurisdiction of this cause. There is in it no “controversy between a citizen of the state in which the suit is brought and a citizen of another state.” It is perhaps not material that the defendant who sought a removal was joined as co-defendant with a citizen of the state where the suit was brought, but it is fatal to the right of removal that one of the plaintiffs was a citizen of another state. It was so decided, after care ful consideration, in the case of Thouron v. Railway Co., 38 Fed. Rep. 673. Motion to remand sustained.
BAIN et al. o. PETERS.
(Circuit Court, E. D. Virginia. December 10, 1890.)
NATIONAL BANK-INSOLVENCY_PAYMENT OF PREFERRED DEBT-INTEREST.
Insolvent debtors of an insolvent national bank assign, giving preferences in favor of the bank. Quære, whether the debt preferred shall carry interest. Held that, where there is nothing in the language of the assignment, or in the circumstances under which the debt was created, to negative the presumption that the debt should bear interest, and nothing in the conduct of the receiver of the pa tional bank to estop him from claiming interest, in such a case interest must be
paid. (Syllabus by the Court.)
In Equity. On petition of receiver to be allowed interest upon a pre ferred debt, the principal of which has been paid.
T. S. Garnett and W. J. Robertson, for receiver.
HUGHES, J. There are cases in which sums of money made payable by instruments defining them do not carry interest after the date when they become payable, if payment is deferred. They are cases in which the circumstances and language under and by which the sums are made payable forbid the implication that interest is to accrue. A case of this class was that of Murphy's Appeal, 6 Watts & S. 223, cited at bar, in which there was an assignment in trust, which provided, among other things, that the trustee should "pay and satisfy in full the sum of $5,178.32 to Placette Caze, a minor, to be paid to her, or whomsoever