THE SARA.H

511

stood. The rule laid down in: WorM. V. 'I.tiunesa was'follow,ed l1ndapproved by Judge ACHESON in this court in the case of TMHudson, 8 Fed,. Rep. " In the present case the respondents have not undertaken to show that the vesSel was from' returning to Cincinnll.ti, or that any real!lOnexisted.which required the discharge of the crew rat Pittsburgh. While even'that might not relieve the resp0ndents, in the, absence of an express ,eontract, from the to return the to. riati, yet it makes the present clJ,sestronger against the respondents than either of the Cases cited. Therespondentsin this case assumed: they had the rightto,terminatethe service at Pittsburgh because they saw fit to do 80., One differeneebetween this case lUld the caSeS cited, is that in this case the boat was about tot begin her return trip from a foreign to her hOIQ.eport at the time the libelants were hired, and they,were discharged at [her home port. lam unable to sea, though, how that ,uters or affects the rule laid, down in the cited cases. As to those of the libelants'whose homes were in Oiacinnati, ,the voyage was to· a;(oreign port. The boo.twlls engaged in the coal trade between Pittsburgh nati,and,was plying back and forth, as the stage of water The libelants bild a tight to assume, in the absence of an :express agreement or statement to thecoritrary, that she would Such being the case', they are entitled to be returned to Oincinnati. ,Tlley are each, with the exception of Michael Hawkins, entitled to be pai9 the cost of tickettoOincinnati, which,as:the undisputed testimony shows,&t the dateoftb'eir discharge, wasiby the cheapest rQute,$8.50; and, as they could have: reached Cincil1nati by rlliI wit1)ju 24 .the time of discharge, they' axe entitled toone day's wages each" the rate of 840 per month, and are entitled to a decree accordingly, with costs. The ,libel must b'e,diSmissed as to Michael Hawkins.

Ta:l!J

,:

SARAH Cml..EN. 1

'

.

STEAM ,rOWAGE Co.'". THE ':,., .

SARAHCULr..EN.

"

'," (D£8f:r1,ct

Oo;Jit; S; D. New

York. Marcn 110. iS91.)

,;;\

,

,

"

LtElt...;.TowAG"':CREDIT' 011' TmRD " iLtbelabtrendered towageeerv,icdo a vessel ,dxpl'essemPloyment by her Illaster,o.J,'ag;r'l;l!lment t,Q Pl}Y, ,Libelant was afterwards ipformedthat tbe R,Ice 'Cdinplfuy'was't6'pay for' 'the and thereafter, for:theabove ;and ,subsequent towage services. rendered bills to such ice company. which were paid in part.. No notice was given to the vessel owner that the ship was expected to pay for the'towage until the failure of the ice company, six months after the first voyage. Hdd, that the service was not rendered on the credit of the vessel, aud, under the circumstances of its dealings with the vessel, libelant was eqUitably estopped from 8ubsequently demanding from her payment of the towage.

lReponed by Edward G. Benedict, Esq., of the New York bar.

512

FEDERAL : REPORTER ,

vol. 45.

In Admiralty. 'Suit to enforce lien for towage.' Owen, Gray &1 Sturges, for claimant. Wing, Shoudy &1 Putnam, (Mr. Burlingham, of counsel,) for libelant. BROWN, J. Upon all the evidence I am of the opinion that the libel for towage should not in this case besustained. The vessel was chartered, in effect, to the Ridgewood 1<:e Company, to bring ice from the Kennebee river to New York, towage to be paid by the charterers. When the schooner arrived at the Kennebeo river, she was taken by the libelant's tugs .to the place of loading, without any express empl<oyment by the captain, or agreement to pay. Before her return, as must be.inferred from the evidence, the libelant was informed that the Ridgewood Ice Company was to pay the towage, which was' equivalent to notice that the vessel' was not to pay it, The towage bills were sent accordingly by the libelant to the Ridgewood Company for various voyages, and a part was paid by that company. No notice was ever· given to the master or to the owners that the ship was held or expected to pay for the towage until after the failure of the Ridgewood Ice Company, and the appointment of a receiver in the latter part of October, some six mont,hsaiter the first voyage. Had any demand of payment been made of the vessel at the time of her departure from Kennebec on the first voyage,. or even afterwards, upon her return on the second voyage; or had any notice been given' her that the prior towage was unpaid, there would have been perhaps sufficient grounds for inferring an implied contrao.t to pay at least for the three subsequent towages. But the master had no knowledge of the alleged local custom. He had never agreed to pay any and had no reason to suppose at the time the .service was rendered, or afterwards, that these towages were not provided by the Ridgewood Company aecording to its agreement, until after its failure. The circumstances seem to me to import the libelant's acceptance of the Ridgewood Company as its debtor from the first, and its only debtor; and that would simply be according to that cornpany the same privilege that by usage belonged to the stockholders in the libelant's company, which covered a considerable part of the Ijqelant's. towage business. I find, therefore, that the service was not rendered upon the credit of the vessel, but on the '1reditofthe.Ridgewoo,d Ice COmpany; .and that,ifthe l\belant might originally have claimed lien for towage, its subsequent dealings with the Ridgewood Company, and failure to m\lke any demand of the ship, or give notice of any claim on her during the six months while the tow:age was collectible from the Ridgewood Company, are such laches, naturally were Jo misleading, as to constitute anettuitable estoppel be dismissed, against the present demand. The .libel should with costs.

a

ROGERS V. VAN NORTWICL'

613

ROGERS '0.

VAN

NORTWI<,'X:

et ale

(O£rcuit Oourt,E. D. WiBconB'£n. March 28, 1891.)
1.

REMOVAL 011' CAUSES-SEPARABLE CONTROVERSY.

To an action claiming the rightful ownership of certain shares of stock in a resident corporation, which are in the name of non-resident stockholders, the corporation is an essential party, and there is no separable controversy.

2.

SAME.

There being no separable controversy, the cause is not removable, under Act Congo March B, 1887, (24 St. O. B73, p. 552, § 2, cl. B,) as amended by Act Aug. IB, 1888, (25 St. c. 866, p. 434,) providing for removal when the controversy is Wholly between citizens of dilferent states.

8.

SAME-TIMELY ApPLIOATION.

Where the petition for removal was filed by some of the defendants after answer, and after their time to answer had expired, but before the expiration of the time, and before answer by the others, the application by the answering defendants was too late, and the others are subjected to their disability.

On Motion to Remand. The complainant, a citizen of Wisconsin, filed his hill in a state court against one John Van Nortwick, a citizen of lllinois, and the Green Bay & Mississippi Land Company, a corporation under the laws of Wisconsin, claiming the rightful ownership of certain shares of stock in the defendant company, in the name of and claimed to be owned by John Van Nortwick, and prayed judgment decreeing such ownership, and a transfer to the plaintiff of such stock. Upon service of process, the corporation defendant answered to the bill, disclaiming interest in the controversy, and submitting to the judgment of the court. Process was not served upon John Van Nortwick, who died testate soon after· institution of the suit. Upon probate of his will, William M. and John S. Van Nortwick were appointed and qualified as executors of the will, the provisions of which are not disclosed in the record. Thereafter, by order of the court, suit was continued against the executors, and against the widow and children of the decea:;;ed, all citizens of Illinois, Il.!l heirs at law. A supplemental bill was filed accordingly, and process issued thereon was personally served within this district upon the deJohn S. and William M, Van Nortwick, individually and as executors. They duly answered to the bill within the time limited by law. An order was made for service of process by publication upon the non-resident defendants, and publication had. After answer by John S. and William Van Nortwick, and after expiration of their time to answer, but before the expiration of the time to answer under ,the order of publication,' and before answer by the other non-resident defendants, upon the joint petition of all the heirs at law of the deceased, an order was made for the removal of ·the cause into this court. Upon the docketing of the cause here, the plaintiff moves to remand. Lyman E. Ba'1"llt8, for plaintiff. John Goodln,nd, for defendants. v.45F.no.8-33