300
FEDERAL· iBEPORrna, vol. 51.
·mere. form' is not regarded as being of greater importance than substance and meritsr., Early in the history of our government that great jurist Justice STORY, in the case of Lavio v. Bait, announced the doctrinewhioh has since received approbation from the bench and bar generally,extending the admiralty and maritime jurisdiction of the courts oftheUnited States to include causes of action arising ex contractu, which, in England, owing to the jealousy of the common-law judges and the power of the court of king's bench to issue writs of prohibition, were excluded from the jurisdiction of the high court of admiralty. It was many years afterwards that for the first time a case before the supreme court afforded an opportunity for it to pass upon precisely the same question.But finally, in the insuran<:ecase of Insurance Co. v. Dunham, theJo,pJ):mtunity came, and in a learned and exhaustive opinion by the late MJ.1. Justice BRADLEY the court sanctioned Judge STORY'S views, and settled the controversy so long maintained as to the jurisdiction of the ildniiralty,courts bfthe United States Over cases founded upoh maritime contracts. Although not referred to directly, C((tler v. Rae has been considered, as overruled by ,thatdecisitlfi. The district and circuit courts have, more than once treated it as an overruled case. See Coast Wrecking QJ.v. Phlen-b: Ins. 00.,7 Fed. Rep. 242; The San Fernando, 12 Fed. Rep. 342·. J It is my opinion that this suit is cognizable as an admiralty cause in: this court, and that the exceptions to the libel are not well founded. overruled.
Mr.,
De
CALIFARNO et (DiBW£ct
at. 'v.
MACANDREWS et al.
.Oourt, S. D. New York. June 8, 1892.)
1.l'RAOTl0....TENDER-SOUTIlERN DISTRIOT 011 NEW YORK,
Intbe district court for tne souttlern district of New York a libelant may at any time, on: Order of the cOlirt, obtain money tendered and deposited in court, sufficient only being resel'ved to cover future costs.
2.
SAMII-INTllllmsT.
r.ntlle, same court, when. respondent serves written notice that he consents to libelants, taking an order for. the withdrawal of the whole or any specific portion Of a. sum so deposited in the registry, interest on SO muoh of libelants' claim thereafter ceases. ,
See 49
'"",,
Judge., :Before suit'the respondents tendered $1,507,39; ;fOJ:(reight ,due. The libelants declined to accept that amount. and filed their libel claiming $1,603.54. The respondents thereupon, before answer anli in accordance with rule 72 of this court, deposited the
.. ",:
'
,
CALU'A.RNO .". MAC ANDREWS'.
801
amount of their tender in the registry, and afterwards pleaded the tender and deposit in their answer. Upon the trial the libelants were found entitled to $1,603.54, the amount claimed. From the decree entered for that sum with interest and costs, the respondents appealed to the circuit court of appeals: After the appeal was perfected, the libelants applied to that court f6r an order directing the payment to them of the amount deposited in this court. The circuit court of appeals declined to make any order as to the deposit, on the ground that it had no authority to interfere; and that, as the fund on appeal remained in the district court, the appellate court had no control over the fund, or over the district court in respect to it, "except when the cause is reoviewed and determined, and remanded for further proceedings in pursuance of the determination." As the fund is, therefore, held to reomain under the jurisdiction of this court, it is pf0per that any suitable In the case of Ralli v. order in reference to it should be allowed. Troop, a similar application was entertained in the circuit court, after an appeal to the supreme court. Upon such a tender and deposit the libelants will in any event be enThe effect of the subsetitled to the benefit of the affiount deposited. quent litigation relates only to their right to a larger sum, or to the costs of litigation. At common law, when money is tendered and brought into court, the plaintiff is at, all events ,entitled to it. 1 Saund. 33, note 2; The R088end Castle, 30 Fed. Rep. 462, 464, and cases there cited. In the last case it was considered by this court that rule 72, requiring the tender to be deposited in court, was designed to adopt to that extent the common-law practice. If so, the deposit should be deemed ,to be Taylor v. Railavailable to the libelant as on a common-law deposit. road Co., 119 N Y. 561,23 N. E. Rep. 1106. Rule 72, moreover, expressly provides that the tender deposited in court shall "abide the order, or decree, to be made in the matter." The effect of the rule, therefore, is to make the moneys deposited under it practically the moneys of the plaintiff, obtainable at ,any time through the order of the court upon such, terms as may be just. By the Code of Civil Procedure of this state, (se«tion 732,) the,right of the plaintiff to take out money so paid in, is recognized; and this is in accord with, the ordinary practiCe in this court upon the consent and stipulation of the parties. Such a course is advantageous to both parties, as it saves, toone or the ,other the loss of interest which must arise if the deposit remains in the registry during a long litigation. Arid as the libelant is entitled, in any event, to the benefit of the whole deoposit, neither party can benefited by, or have any interest in, the detetltion' of the. fund inthe registryduring the subsequent litigation, 1:>eyood whati!;!, necessary for a reasonable indemnity against future costs. " "It is but Jl!st, howeyer, that the resl'0ndent, who has paid his court, not berequired, inqase of his ultimate a,fter appeal it may' be; to look to the security of the libelant's bond alone for
.his",faYQf:'
in of. bp,tb para be rese;rYied to coverall prospective the f\ll)d paid ovef!to', the libelant. fail in ;h;s ,defense,he will by this di1fl'lrence in upon so paid over,·." , ' , ' . ' maybe in herewith, $300 for ip. this actipI\. Such will be the future practice., Hererl'1sQ, of the respondent'a the libelan orderfortbe withdrawal of the whole or any specific porUqn of the sum. teqd,er\l4". interest on so much of the libelant's claiIIl will cel1l>e. ,.' "
will be
costll: :whi91t Ju,: tnatease
suph
(Df.Izrte&.
S. D. MtBBO'WIi, E.
D. .TUlle 16, 1ll9J.>
(No. 8,491.) .,. " "I.
L' 8Jn'PJ'nt'G-Pmo RBGtlLA'l'iON. . .PASSENqBR 'BOATS On.. , , Qf l1etroleum and other Inflammable ar: ticles 6n pa.,l\senger provides that" rll'ftned petroleum, whlcb wlil not Ig. ;ntteat a temperature lesil'tl1an W; deg. of Fahrerthelt thermometer. may becarried ,. ,l.\ch ,steamers IJPQn routes where there is no other practicable mode of transporting It." ' HeW; t,hat petroleum of tbe reqUired test could not be carried 'On 'a passenger steamer W apmatof tranllSblpment, when It was practicable to , tra,nsport.such petroleum, by rail, for about the same rat9. alttlOugb there was DO iall. route from the point Of, to the point of consignment.. L SAMII!"-'''PRA:<i+lchLB'''TRA.NsPoRTATlON. . . , 'l'be word "practicable, .. 88 used in the statute, means oommercially practloable. .as r,rowyhysiQlUly or mechanifally practicable. U. S. Y. Tlwm. bttrq, 6J'ed. 41, and fl. 8. v. Wise, 7 Fed. Rep. 1110, followed. · f
J,' R. E1'1l! owners ofthe lltelltnerJ3entdn,'for transporting coal oil and gasaon stelii,n.hllat contrary to the provisions of Rev. St. § 4472. for the'United States· . sl!'id se.ction "nQ hay, loose cotton, or loose camphene" ,Cir1}de .lH.!e dlin1tetous naphtHa, benzine, benzole,' coal oil, eXI)losive burning fluids, or be cart-ied JRs freight or used as stores on '.' .:". *'. l{etined petro]euIn,which Jess 'deg. ther. fJ LoiiKl $llch ateiuutlr uiion there
.
Robert Roehrig and Mrs.
Or other like
Will t1otigJ11te at'a i,
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