of rosin, and proceeded on her way to Georgetown. The day was calm and clear. Reaching Georgetown, the Planter put on an extra force of hands, discharged all her cargo, including the rosin, and excepting 50 tons of fertilizers, and at 8 P. M. started for the schooner, reaching her at 10 P. M. The weather in the mean time had become threatening and windy. The night was dark. Backing down towards the schooner from the side of the shoal opposite to that on which she had grounded, the Planter took a hawser from her and again attempted to pull her off, but without success. The tide falling, the Planter left the schooner, and spent the night at South island, some four miles distant. She returned early the next morning. Pilot Romley, who had been on the tug when the disaster occurred, and who was on the schooner when the Planter came up, left the former in a small boat, and boarded the Planter, to aid her master with his advice and experience in his efforts to get the schooner off. It was agreed that these efforts should be renewed as soon as the master of the schooner put a flag in his rigging indicating that his vessel had begun to thump on the rising tide. The signal was given. The master of the Planter, having the assurance of the pilot that the depth of water on the shoal was at that time seven feet, (his steamer drew from five to five and one-half feet,) went to the schooner, bent on his own hawser, and again pulled on her. The schooner, thus in tow, was gradually dragged over the shoal to the side opposite to that on which she had struck, and got off into deep water. Just before she reached deep water she put up her spanker and mainsail, and soon afterwards her jibs. While the Planter was engaged in this service, and just about the time the schooner got into deep water, a bridle put on the hawser, and leading to the bow of the steamer, was let go by some of her hands too soon. It got afoul of her wheel and dragged the hawser with it. The latter had to be cut out. As soon as possible the Planter again took the schooner in tow. The schooner furled her sails, and with the Planter she proceeded to Georgetown, reaching the dock about half past 1 P. M. The weather on this second day was blustering. The wind very high from the south-west. The sea was breaking on the shoal. Once at least the Planter touched bottom in the swell. On Monday the tug went to Georgetown with a message from the master of the schooner, for hands and lighters to take cargo from his vessel. She came back in the afternoon with lighters and hands. The lighters could not go on the shoal. The hands went aboard the schooner, and assisted the crew, who had been engaged all day in making jettison of the cargo. This was kept up during a part of the night and of the next day, and 1,000 packages were thrown overboard. The draft of the schooner was thereby reduced to 9 feet 10 inches. Some of this rosin floated away. As the specific gravity of the lower grades of rosin is greater than that of water, and much of the cargo was of this low grade, many of the packages sank. One of the risks of the Planter was from this rosin. The floating packages might foul her paddle wheels; and, tossing on the rough sea of the shoal, her bottom may have come in contact with the staves inclosing the rosin, endangering a leak. The Planter is a

high-pressure side-wheel steamer, with two engines,-one for each wheel. She has about 350 horse-power. She carries passengers and freight, and is not engaged in the towing business. Her regular course, however, is on the shallow and boisterous waters of this coast, and she carries a long and heavy hawser, ready to render assistance by way of salvage. She is worth $25,000. On the day of successful service she had as cargo 50 tons fertilizers, worth $1,000. The schooner is 10 years. old; cost, when built, about $24,000. Roughly estimated, she is worth about $12,000. The cargo left after the jettison is worth between three The evidence is not distinct on these points. and four thousand dollars. Was the schooner in peril? The essential questions in this case are: Did the Planter contribute to her rescue? The master and mate of the Planter testify strongly in the affirmative of each question. The master and a man who was pilot on the schooner testify in the negative, denying both the peril and the service. There are certain facts, however, which conclude these questions. The Nellie Floyd was aground in the breakers on a shoal of an exposed bar. The greatest depth of She drew 11 water on that shoal with the prevailing tides was 7 feet. feet 2 inches, and, after making jettison of about one-third of her cargo, A heavy wind was blowing from the southshe drew 9 feet 10 inches. west. In his protest, extended after reaching port, the master of the schooner called it a gale. It was so entered on his log. She was on the south side of the shoal. Wind, tide, and waves drove her upon it. The sea was very heavy on the shoal, even at low water. Pilot Romley, who left the schooner in the morning in a small boat to go to the steamer, says that it was dangerous to do so, but that the emergency justified the risk. The master of the schooner, when he got in safely, expressed in warm terms his indebtedness to the Planter for timely, needed, and efficient service. Soon afterwards he called a board of three persons to estimate the value of his vessel in the position on the shoal which he described to them. They agreed on the sum of $4,250,-about one-third of the estimate put on her after she reached the dock. Two efforts had been made to get her off, without success,-one on Monday, with the tug and steamer; one on Monday night, by the steamer alone. When dragged off she was drawing 9 feet 10 inches in a depth of 7 feet of water. It had taken all Monday afternoon, into Monday night, and a part of Tuesday, to take out one-third of her cargo, lessening her draft 1 If she had not had the foot 4 inches. She was rescued at high water.

steamer, and intended to reduce draft and use her sails, she could not attempt to get off until the next tide, 12 midnight. As the bar has no lights on it, no vessel crosses it at night. So she had to wait until the next day's To reduce draft to 7 feet she had to jettison cargo, tide, say 12:50 p. M. and reduce her draft 2 feet 10 inches. The one-third already out reduced it but 1 foot 4 inches. So she was in peril, and the Planter rescued her. As the tug drew too much water to aid her, and as there was no other steamer in Georgetown or its vicinity approaching the Planter in power and capacity, the importance of her service is enhanced. Her peril was not extreme, nor was her destruction certain, unless soon re

lieved. The Planter also encountered peril in rendering the service,peril requiring ability and courage. The efficient salvage service was rendered on Tuesday. It was rendered promptly, skillfully, energetically, and successfully. She spent a night and nearly one day in the service, and lost her hawser. After the service was rendered, and the schooner safe at her wharf, the master of the Planter suggested to the master of the schooner that, instead of litigating the matter of salvage, they ought to settle it out of court, and that by way of settlement the salvage be fixed at $1,800, of which $600 would be allowed the schooner by way of rebate. This suggestion was at once rejected by the master of the schooner. His proctor insists that this was gross misconduct on the part of the salvor,-such indeed as should diminish, if not forfeit altogether, any award. The practice of requiring and receiving rebates, which pervades so many branches of mercantile life, cannot be too severely rebuked. The rebate is a bribe offered and accepted as an inducement in every instance to disregard, and in very many instances to betray, the interests one or other party is bound to protect. Here the insurer would have been the victim. Had this arrangement been made during the performance of the salvage service; had it been used as an adjustment after the service was rendered; had the offer been made by the authority, sanction, or confirmation of the libelant,-the award would have been seriously affected. It was made long after the service was completed, without any authority or confirmation on the part of libelant, and led to no result. From the high character borne by the master of the Planter I feel sure that he was unconscious of the full meaning of the suggestion. After full consideration of the matter I award for the salvage services in this case the sum of $1,000, besides the price of the hawser,-$125. The testimony of libelant showed some danger of life on the part of the crew of the Planter. They are not parties to this proceeding. At the hearing it was stated that libelant would arrange with them. Let a stipulation in writing to this effect be filled before the award is paid out to the libelant. The salvage award must be paid by the vessel and cargo proportionately. If this proportion needs adjustment the parties have leave to apply at the foot of this decree for any further order necessary. Costs to be paid by respondent.

BISSELL v. CANADA & ST. L. RY. Co. et al.

(Circuit Court, D. Indiana. May 31, 1889.)

REMOVAL OF CAUSES-SEPARABLE CONTROVERSY.

To an action against a railroad company by one asserting an indebtedness claimed to be a first lien on the defendant's track, a mechanic's lien claimant and the mortgagee of the company were made parties. The mechanic's lien claimant filed a cross-petition, asserting his lien, to which the mortgagee was made a party. The mortgagee, in his petition for removal, claimed that his lien was prior to each of the lien claimants, and that the mechanic's lien claimant was estopped to assert a lien superior to that of the mortgage. Held, that the controversy presented was simply the question of priority of liens, and that the petition failed to show a separable controversy between the mortgagee and either of the lien claimants, which could be determined without the presence of the railroad company.

On Motion to Remand.

Turner, McClure & Ralston, A. C. Harris, and H. A. Gardner, for petitioner.

T. M. Marquette, Thos. C. Windes, and Baker & Baker, for Fitzgerald. Wilson & Davis, for Bissell.

WOODS, J. Briefly stated the case is this: Bissell, by the original bill, asserts an indebtedness of the railroad company to him, and upon the facts stated claims a first lien upon a part of the track of the defendant company's road. Fitzgerald, one of the defendants to that bill, by crossbill asserts an indebtedness of the railroad company to him for work done and materials furnished in the construction of the road, and claims a statutory lien in the nature of a mechanic's lien. The petitioner, the Farmers' Loan & Trust Company of New York, is made a defendant in both bills, and in the petition for removal claims a lien by mortgage upon the road, which it asserts to be prior to the rights of Bissell and of Fitzgerald, respectively, and particularly alleges an estoppel against Fitzgerald to assert any claim inconsistent with or superior to the mortgage; and so claims that it has a separable controversy in the case, with Fitzgerald, who is a citizen of Nebraska, and also with Bissell, who is a citizen of Indiana. In respect to this subject the present statute is the same as that of 1875, and I think the motion to remand must be sustained. Aside from the question of separable controversy, the original bill affords no ground for the assertion of jurisdiction here, because the demand and prayer for relief are for less than $2,000; and, if it be conceded that the right of removal may arise under a cross-bill,-a proposition disputed by counsel in argument, the petition, in my judgment, fails to show that the petitioner has a controversy with either Bissell or Fitzgerald which could be heard and determined without the presence as a party of its co-respondent, the railroad company, or of the receiver of that company. The controversy here claimed to be separable is simply a question of priority of liens, and is determinable as an incident to the issues tendered by the bill and cross-bill,-each involving and proposing as the subject-matter of controversy the question of the existence, v.39F.no.4-15

character, and amount of the indebtedness and lien sought to be established. To such a bill the alleged debtor is a necessary party, and complete relief thereon cannot be administered without the presence of junior lienholders and of all who assert conflicting or inconsistent rights; and, if there are questions of priority between defendants, or between any defendant and the complainant, they are determinable as incidents to the principal controversy, but not, as it seems to me, in a separate action between the lienholders, without the presence of the debtor. I suppose it to be unknown to practice, and not permissible, that lienholders, whose claims remain unadjudicated as against the debtor, shall bring one another into court, in an action to which the debtor is not made a party, merely to settle a question of priority; and, this being so, it cannot well be contended that, all the parties being in court under a bill to establish and enforce the complainant's lien, one of the defendants can claim to have in such action a separable controversy in respect to that which he could not have litigated in an independent action. If, as in the Removal Cases, 100 U. S. 469, the questions between Bissell and Fitzgerald, and between each of them and the railroad company, had been fully determined before the trust company was served with process or had appeared to the action, the case would be held, as that was, to be removable; but the material facts here are entirely different. Nothing has been adjudged here between any of the parties, while there, the rights of the complainant against the debtor company having been completely determined before the petitioner for removal was made party, the court treated the debtor company as having become a nominal party only, and held the entire remaining controversy to be one between citizens of different states, and accordingly removable under the first clause of the section, and reserved consideration of the second clause (in respect to separable controversies)" until the case requiring it" should arise. There having been an actual separation of the question of priority between lienholders or claimants from the principal cause of action, the question of separability was not up. See Ayres v. Wiswall, 112 U. S. 187, 5 Sup. Ct. Rep. 90.

The decision in City of Galesburg v. Water Co., 27 Fed. Rep. 321, seems to support the assertion of jurisdiction in this court; but, as appears from the opinion, that ruling was predicated upon the proposition "that the holders of the bonds (or their trustee) may have another and different answer in this litigation to the original bill from that which could be put in or relied upon by the water company,"-the co-respondent of the petitioner in the case; and it has become now well settled "that separate defenses do not create separate controversies within the removal act." Railroad Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. Rep. 735; Fidelity Ins. Co. v. Huntington, 117 U. S. 280, 6 Sup. Ct. Rep. 733. The last-named case was upon a creditors' bill to enforce payment of a judgment. The Fidelity Company was made defendant, and sought, as does the petitioner here, to remove the case into the federal court; and on the question of separability the court says:

"The judgment sought against the Fidelity Company is incident to the main purpose of the suit, and the fact that this incident relates alone to this com