Remand or dismissal of cause.
*A cause removed into a federal court on the
ground of diversity of citizenship will be remand- See "Highways." ed unless the jurisdiction of such court appears from the record, which includes for the purposes of such motion the petition of removal and all pleadings and other papers previously properly
filed in the suit in the state court. Helena See "Courts," § 2. Power Transmission Co. v. Spratt (C. C.) 310.
5. Proceedings in cause after re- moval.
*The removal of a cause does not preclude the defendant from challenging the jurisdiction of either the state or federal court over his person or from claiming exemption from being sued in a state other than that of his residence. -Davis v. Cleveland, C., C. & St. L. R. Co. (C. C.) 403.
On foreclosure of mortgage, see "Mortgages," § 1.
Real property in general, see "Vendor and Pur- chaser.'
1. Construction of contract.
A contract for the sale and delivery of lum- ber construed and held not one for the sale of a certain quantity, but of the lumber then on hand by the sellers, and such as should be
By interstate commerce commission, see "Com- cut by them during the ensuing year regardless merce," § 1.
of the quantity.-Inman Bros. v. Dudley & Daniels Lumber Co. (C. C. A.) 449.
Cancellation of written instrument, see "Cancel- uct held not to obligate defendant to accept
lation of Instruments."
Of contract, see "Contracts," § 3.
A contract for the sale of a patented prod- any part of the product specified in the con- tract, and that no such obligation could be im- plied.-Amalgamated Gum Co. v. Casein Co.
Of contract for sale of land, see "Vendor and of America (C. C.) 900. Purchaser," § 2.
A contract for the manufacture and sale of machinery construed with reference to the terms. of the warranties therein.-F. D. Cummer & Sons Co. v. Marine Sugar Co. (C. C. A.) 240.
§ 3. Remedies of buyer.
Evidence held material and admissible on the question of damages in an action for breach of a contract for the sale of lumber.-Inman Bros. v. Dudley & Daniels Lumber Co. (C. C. A.) 149.
§ 1. Right to compensation.
*A tug which failed to perform a contract for the floating and delivery in port of a stranded schooner cannot recover as salvage compensation for services rendered in attempting performance which did not benefit the schooner. The Myrtle Tunnel (D. C.) 324.
The raising of a scow sunk in its home port, under a contract, and where the work involved no element of danger and nothing out of the usual, is not a salvage service which creates a lien on the vessel.-The Paul L. Bleakley (D.
See "Appeal and Error"; "Criminal Law," § 4. C.) 570.
RIPARIAN RIGHTS.
See "Waters and Water Courses," § 2.
§ 2. Amount and apportionment.
*The ancient rule for the allowance of a moiety of the value saved in the salving of a derelict to the salvors while somewhat flexible and subject to change in extraordinary cases is a safe and salutary limit upon judicial dis- cretion and not to be lightly disregarded.-The
Within insurance policy, see "Insurance," § 3. Myrtle Tunnel (D. C.) 324.
*Point annotated. See syllabus.
Tugs which rescued a schooner after she had become a derelict held entitled to an award for the salvage of one-half the proceeds of the ves- sel and cargo saved.-The Myrtle Tunnel (D. C.) 324.
SATISFACTION.
See "Payment"; "Release."
See "Admiralty"; "Collision"; "Maritime Liens"; "Salvage"; "Seamen."
A ship held liable under a charter party re- quiring it to provide men to work the winches for the expense of hiring outside winchmen in ports where the stevedores refused to work with winchmen from the crew, without fault of the
SCHOOLS AND SCHOOL DISTRICTS. charterer, although she had competent_winch-
Under Iowa Code 1873, § 1715, which provides that upon the division of an independent school district the assets and liabilities of the old district shall be equitably divided between the new districts a suit by a bondholder of a dis- trict which has ceased to exist by reason of the subdivision of its territory into new districts to enforce payment by the new districts is with- in the equity jurisdiction of a federal court.- Gamble v. Rural Independent School Dist. of Allison (C. C. A.) 113; Rural Independent School Dist. of Allison v. Gamble, Id.
*A seaman who shipped on a whaling voyage under a lay contract, but to whom no account- ing was made by the owner of the vessel on the completion of the voyage, will not be held bound by a release given by him some time afterward, when greatly intoxicated, on the payment to him of an inadequate sum in set- tlement for his share of the catch.-The Bar- bara Hernster (C. C. A.) 732.
*Where the owner of a whaling vessel on her return from a voyage on which libelant served as a seaman under a lay contract shipped away the product taken without making a divi- sion, it thereby became liable to libelant for the reasonable value of his share. The Barbara Hernster (C. C. A.) 732.
The advance payment of wages to a seaman, in violation of Act Dec. 21, 1898, c. 28, § 24, 30 Stat. 763 [U. S. Comp. St. 1901, p. 30791]
does not render the contract for service made by the shipping articles void under Rev. St. 4523 [U. S. Comp. St. 1901, p. 3075] where it is not shown that the unlawful payment entered into the contract as one of the things agreed on by the parties.-The Bound Brook (D. C.) 160.
SEPARABLE CONTROVERSY.
Removal from state court, see "Removal of Causes," §§ 2, 4.
SERVICES.
See "Work and Labor."
SETTLEMENT.
See "Payment"; "Release."
men in her crew.-Golcar S. S. Co. v. Tweedie Trading Co. (D. C.) 563.
A charter party construed and held a demise of the ship with respect to the cargo under which the charterer was not entitled to recover from the owner for a shortage in cargo deliver- ed. Golcar S. S. Co. v. Tweedie Trading Co. (D. C.) 563.
The provision of section 2 of the Harter Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946], making it unlawful for the owner of a ship "to insert in any bill of lad- ing or shipping document any covenant or agree- ment whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo and to care for and properly deliver the same shall in any wise be lessened, weakened, or avoided," lates to contracts between carrier and shipper and does not apply to a charter party by which a ship is demised.-Golcar S. S. Co. v. Tweedie Trading Co. (D. C.) 563.
A charterer held entitled to a deduction of charter hire during the time the vessel was de- tained in quarantine owing to the illness of the crew under a charter party which required the owner to furnish the crew to efficiently man the vessel.-Tweedie Trading Co. v. George D. Em- ery Co. (D. C.) 618.
A provision of a charter party mutually ex- empting "restraints of princes, rulers, and peo- ple" covers a detention of the vessel in quaran- tine, and exempts the charterer from the pay- ment of hire during the time of such detention. Tweedie Trading Co. v. George D. Emery Co. (D. C.) 618.
Liabilities of vessels and owners in general.
*The owner of a steamer held liable for injuries to scows in tow in New York Bay and harbor caused by her swell which might have been avoided by a reasonable reduction of speed. -Ross v. Central R. R. of New Jersey (D. C.) 608.
Evidence considered and held to sufficiently identify the respondent's steamer as the one causing a swell by which libelant's tows were injured.-Ross v. Central R. R. of New Jersey (D. C.) 608.
$ 3. Carriage of goods.
Damage to the cargo of a schooner from sea- water during a voyage on which she encountered heavy seas of unusual violence adequate to strain her seams, and cause her to take in an unusual quantity of water, where she was
*Point annotated. See syllabus.
shown to have been seaworthy at the inception | continuous considering the time, place, cir- cumstances, and the nature of the cargo.- United States Shipping Co. v. United States (C. C.) 914.
of the voyage, properly stowed and handled, is within an exception of "dangers of the sea" in the bill of lading and she is not liable therefor. -Cook v. Southeastern Lime & Cement Co. (D. C.) 101.
§ 4. Carriage of passengers.
Where a steamship passenger had not retired for the night, and a light was burning in her stateroom, she was not chargeable with con- tributory negligence for a theft therefrom be- cause of leaving the door partially open for ventilation and fastened only by a hook pro- vided by the vessel for the purpose.-The Min- netonka (C. C. A.) 509.
*A shipowner is liable to a passenger for the value of jewelry stolen during the voyage by a steward employed to perform duties which the carrier owed to the passenger under the contract of carriage.-The Minnetonka (C. C. A.) 509.
Notice of a claim by a passenger against a steamship for loss of effects held to have been given in substantial compliance with the con- ditions of the ticket.-The Minnetonka (C. C. A.) 509.
Rev. St. § 4281 [U. S. Comp. St. 1901, p. 2942], does not relieve a shipowner from liability for jewelry worn and carried on board in person by a passenger and stolen by an employé of the ship before the passenger could deposit it with the purser as intended and permitted by the rules. The Minnetonka (C. C. A.) 509.
Conditions printed inconspicuously upon a steamship ticket providing that the shipowner shall not be liable for any loss of the pas- senger's baggage through theft or any act, neg- lect, or default of the shipowner's servants or others, which were not known to the passenger nor called to his attention, are invalid and con- stitute no defense to an action by the passenger to recover for the loss of jewelry stolen by one of the ship's employés.-The Minnetonka (C. C. A.) 509.
Evidence held to sustain a finding that jewelry belonging to libelant was stolen from her state- room while she was a passenger on a trans- atlantic steamship by an employé of the ship.- The Minnetonka (C. C. A.) 509.
Proof that a passenger's baggage was delivered to a vessel in good condition, and was dam- aged by sea water at the end of the voyage, is sufficient to establish the negligence of the car- rier.-Weinberger v. Compagnie Generale Trans- atlantique (D. C.) 516.
A contract for transporting naval stores and ammunition to the naval station at Cavite, Philippine Islands, during the time of war in the Islands, construed with respect to a claim for demurrage for delay in discharging.-United States Shipping Co. v. United States (C. C.) 914.
*In the absence of contract, the charter price per day of a vessel under a time charter is not the measure of demurrage recoverable for delay in discharging cargo taken by the charterer for another, but rather the probable net earnings of the vessel during the time lost in the usual course of its employment.-United States Shipping Co. v. United States (C. C.) 914.
A shipper held liable for demurrage on ac- count of detention of the vessel in discharging under the provisions of the contract notwith- standing the failure of the shipowner to collect such demurrage at the port of discharge from the consignee or by enforcing its lien on the cargo, both of which rights it also had.-Tweedie Trading Co. v. Pitch Pine Lumber Co. (D. C.)
6. Limitation of owner's liability.
Personal representatives of passengers and crew of two vessels who died as the result of a collision due to the fault of both vessels held entitled to maintain a claim against their owners in proceedings to limit the owners' liability.-The Hamilton (C. C. A.) 724; The Saginaw, Id.
Under a statute authorizing a recovery for wrongful death by the widow of the deceased person, a claim in proceedings by the owners of certain vessels to limit their liability for damages resulting from a collision, filed by claimant as widow and executrix of one of the persons killed in the collision, held sufficient.- The Hamilton (C. C. A.) 724; The Saginaw, Id.
Where claim for death of a person in a col- lision between vessels was filed by decedent's widow and executrix, an order permitting its amendment so as to recite that she claimed as widow held not objectionable as pleading a new cause of action.-The Hamilton (C. C. A.) 724; The Saginaw, Id.
A provision printed on a steamship ticket for the carriage of six passengers limiting the lia- See "Libel and Slander." bility of the carrier for loss or damage to bag- gage to $100 not read by nor called to the at- tention of the passengers is unreasonable and void. Weinberger v. Compagnie Generale Trans- atlantique (D. C.) 516.
SPECIFIC PERFORMANCE.
§ 1. Nature and grounds of remedy in general.
*Where a city has refused to perform its con- tract to purchase the waterworks of a company at a price named on their productive worth to be determined by appraisers, the water company has no remedy at law as complete as specific *Point annotated. See syllabus.
A provision of a bill of lading that the dis- charge of cargo by the consignee shall be "con- tinuous" means only that it shall be reasonably
performance in equity.-Castle Creek Water Co. v. City of Aspen (C. C. A.) 8.
§ 2. Contracts enforceable.
Where, in a contract of sale of real estate at a price to be fixed by appraisers, the stipula- tion for the appraisers is auxiliary to the main purpose of the contract, equity may determine the price itself, or by appraisers of its own se- lection, and enforce specific performance.- Castle Creek Water Co. v. City of Aspen (C. C. A.) 8.
Evidence held, to show an equity in complain- ant, entitling it to a specific performance of the contract.-Castle Creek Water Co. v. City of Aspen (C. C. A.) 8.
Adoption by United States courts of state laws as rules of decision, see "Courts," § 3. Laws impairing obligation of contracts, see "Constitutional Law," § 2.
Provisions relating to particular subjects. See "Carriers," § 1; "Customs Duties"; "Post Office," § 1; "Railroads," § 1; "Removal of Causes," § 3; "Schools and School Districts," § 1; "Shipping," §§ 1, 4.
Revenue laws, see "Internal Revenue." Statute of frauds, see "Frauds, Statute of."
§ 1. Construction and operation.
*While the position of a proviso in a stat- ute has a great influence upon the question of its application, the inference from its position cannot overrule its plain general intent, es- pecially in composite structures such as tariff and appropriation acts.-United States v. R. F. Downing & Co. (C. C. A.) 56; Same v. Schoellkopf, Hartford & Hanna Co., Id.
*A statute is not retrospective in operation because a part of the requisites for its action is drawn from another statute, existing before the passage of the act in question.-McDougald v. New York Life Ins. Co. (C. C. A.) 674.
STATUTES AT LARGE.
1874, June 18, ch. 301, 18 Stat. 78 [U. S. Comp. St. 1901, p. 3411].... 1874, June 22, ch. 391, § 21, 18 Stat. 190 [U. S. Comp. St. 1901, p. 1986].. 1887, Feb. 4, ch. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]....
1887, Feb. 4, ch. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]. Amended by Act 1903, Feb. 19, ch. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599].... 298 1887, Feb. 4, ch. 104, § 14, 24 Stat. 384 1887, March 3, ch. 359, 24 Stat. 505 [U. S. [U. S. Comp. St. 1901, p. 3164]. Comp. St. 1901, p. 752]..
1887, March 3, ch. 379, §§ 1, 2, 7, 24 Stat. 505 [U. S. Comp. St. 1901, pp. 752, 753, 755]
1887, March 3, ch. 373, § 2, cl. 4, 24 Stat. 553 [U. S. Comp. St. 1901, p. 509]...... 972 1888, Aug. 13, ch. 866, § 2, 25 Stat. 434.... 972 1890, June 10, ch. 407, § 13, 26 Stat. 136 [U. S. Comp. St. 1901, p. 1932]... 1890, June 10, ch. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933]......84, 484 1890, June 10, ch. 407, § 15, 26 Stat. 138 [U. S. Comp. St. 1901, p. 1933]... 1890, June 10, ch. 407, § 20, 26 Stat. 140 [U. S. Comp. St. 1901, p. 1950]. Amended by Act 1890, Oct. 1, ch. 1244, § 54, 26 Stat. 624 [U. S. Comp. St. 1901, p. 1950] 484 1890, Oct. 1, ch. 1244, § 54, 26 Stat. 624 [U. S. Comp. St. 1901, p. 1950]. 1891, March 3, ch. 517, § 5, 26 Stat. 827 [U. S. Comp. St. 1901, p. 549]... 1891, March 3, ch. 565, 26 Stat. 1106 [U. S. Comp. St. 1901, p. 3406]... 1892, May 5, ch. 60, 27 Stat. 25 [U. Comp. St. 1901, p. 1319]. . . . . 1892, July 27, ch. 272, § 1, 27 Stat. 277 [U. S. Comp. St. 1901, p. 947]..... 1893, Feb. 13, ch. 105, § 2, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]..... 1893, Nov. 3, ch. 14, 28 Stat. 7 [U. S. Comp. 1901, p. 1322].
1894, Aug. 27, ch. 349, § 48, 28 Stat. 563 [U. S. Comp. St. 1901, p. 2109]... 1897, June 4. ch. 2. 30 Stat. 34 [U. S. Comp. St. 1901, p. 1540]....
1897. July 24, ch. 11, § 1, Schedule G, par. 262, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651]...
1897, July 24, ch. 11, § 1, Schedule G, par. 264, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651]...
1897, July 24, ch. 11, § 1, Schedule G, par. 272, 30 Stat. 172 [U. S. Comp. St. 1901, p. 16521
1897. July 24, ch. 11, § 2. Free List, pars. 626, 633, 30 Stat. 199. 200 [U. S. Comp. St. 1901, pp. 1685, 1686].... 1897, July 24, ch. 11, § 2, Free List. par. 638, 30 Stat. 200 [U. S. Comp. St. 1901, p. 1686]....
1897, July 24, ch. 11. § 1, Schedule L, par. 385, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668]...
.63, 132 1897, July 24, ch. 11. § 1, Schedule N, par. S. Comp. St. 1901,
1902, March 11, ch. 183, § 7. 32 Stat. 66 [U. S. Comp. St. Supp. 1905, p. 114].... 994 1902, April 12, ch. 500, § 4, 52 Stat. 97 [U. S. Comp. St. Supp. 1905, p. 445].... 1902, June 27, ch. 1160, 32 Stat. 406 [U. S. Comp. St. Supp. 1905, p. 449]. 1902, Dec. 15, ch. 1, 32 Stat. 753 [U. S. Comp. St. Supp. 1905, p. 420]. 1903, Feb. 5, ch. 487, 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684] 383, 623 1903, Feb. 19, ch. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599].... 298 1903, Feb. 19, ch. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]. Amended by Act 1906, June 29, ch. 3591, 34 Stat. 584...
298 1906, June 29, ch. 3591, 34 Stat. 584.... 298
1897. July 24, ch. 11, § 2, Free List, par. 661, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688].. 83 1897, July 24, ch. 11, § 7, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].. ....61, 148 1897, July 24, ch. 11. § 33, 30 Stat. 213, [U. S. Comp. St. 1901, p. 1701]. 484 1898, June 13, ch. 448, 30 Stat. 464. Amended by Act 1901. March 2, ch. 806 31 Stat. 948 [U. S. Comp. St. 1901, pp. 2307; 2308]; Act 1902, June 27. ch. 1160, 32 Stat. 406 [U. S. Comp. St. Supp. 1905, p. 449].
1898, July 1, ch. 541, §§ 2, 7. 30 Stat. 545, 548 [U. S. Comp. St. 1901, pp. 3420, 3425]
1898, July 1, ch. 541, § 14, subd. 2. 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]. Amended by Act 1903, Feb. 5, ch. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684]....
1898, July 1, ch. 541, § 14b, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]. Amend- ed by Act 1903, Feb. 5, ch. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684]
1898, July, 1, ch. 541, §§ 20, 21, 30 Stat. 551 [U. S. Comp. St. 1901, p. 3430]... 1898. July 1, ch. 541, § 23a. 30 Stat. 552 [U. S. Comp. St. 1901. p. 3431].... 1898, July 1, ch. 541, §§ 29, 38, 57, 30 Stat. 552, 554, 555, 560 [U. S. Comp. St. 1901, pp. 3423, 3435, 3443]. 1898, July 1, ch. 541, § 57g, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]...... 1898, July 1, ch. 541, § 63a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447]..... 1898, July 1, ch. 541, § 70 (5), 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]...... 1898, Dec. 21, ch. 28, § 24, 30 Stat. 763 [U. S. Comp. St. 1901, p. 3079].. 1900, June 5, ch. 717, § 1, 31 Stat. 270 [U. S. Comp. St. 1901, p. 696]... 1900. June 6, 786, subch. 22, § 204, 31 Stat. 522....
1901, March, 2, ch. 806, 31 Stat. 948 [U. S. Comp. St. 1901, pp. 2307, 2308]... 1901, March 3, ch. 845, § 3, 31 Stat. 1093 [U. S. Comp. St. 1901, p. 1328].....
§ 1045 [U. S. Comp. St. 1901, p. 726]. 2145.
4523 [U. S. Comp. St. 1901, p. 3075].... 160 4887 [U. S. Comp. St. 1901, p. 3382].... 534 § 4915 [U. S. Comp. St. 1901, p. 3392].. 758 § 4952. Amended by Act 1891, March 3, ch. 565, 26 Stat. 1106 [U. S. Comp. St. 1901, p. 3406]......
375 §§ 4956, 4962 [U. S. Comp. St. 1901, p. 3407]
§ 4963 [U. S. Comp. St. 1901, p. 3412].... 354 § 4965 [U. S. Comp. St. 1901, p. 3414]..375, 377 $5209 [U. S. Comp. St. 1901, p. 34971..280, 289 § 5258 [U. S. Comp. St. 1901 p. 3564].. 403 89 $5356 [U. S. Comp. St. 1901, p. 3638]... 975 202 5438 [U. S. Comp. St. 1901, p. 3674]. 1425440 [U. S. Comp. St. 1901, p. 3676].... 298 $5451 [U. S. Comp. St. 1901, p. 3680]. 121 $5480 [U. S. Comp. St. 1901, p. 3696] 219, 223 § 5497 [U. S. Comp. St. 1901, p. 3707].... 778
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