two men and a foreman. The libelant had eight men. After pumping about 20 tons of coal from the stern of the schooner, the current, which is always strong at that part of the Race, struck her broadside. swung off and was towed into New London on the same day. She was leaking. The libelant sent divers under her to ascertain her injuries. Steam pumps were employed to prevent her sinking. On May 9th the coal was libeled, and was bonded and removed from the vessel on May 10th. The value of the top-hamper was $800 to $1,000. The value of the vessel and hamper was $1,200 to $1,500. The owners of the vessel settled with the libelant for $600. They paid more than 70 per cent. of the libelant's estimate of the value of the vessel. The value of the coal was $1,574.70. The insurers offered to sell the libelant their interest in the cargo, subject to his lien, for $800. No other offer of settlement was made. The Chester was accustomed to charge, and did charge, $100 per day from the time she left her wharf until she returned to it. The libelant paid her owners $600 for her services. The undertaking upon which he entered was an expensive one, and with little promise of as complete and prompt success as he had, and could not have been accomplished without the aid of appliances such as were on board the Chester.

Without considering the question whether Kalloch had implied authority to represent the owners of the cargo, I think that the contract under which Scott reduced his offer of 50 per cent. upon the top-hamper to 40 per cent., upon condition that he could have 75 per cent. of the value of the cargo, if successful, was a contract which tended to unfairness. If the agent, who particularly represents the owners of the vessel, is permitted to obtain better terms for the vessel, by making a contract in regard to the cargo which is favorable to the salvor, such a negotiation, if allowed and sanctioned by the courts, would result in injustice towards the absent party. The court is therefore not obliged to carry out the agreement. The Vesta, 2 Hagg. Adm. 189; The Albion Lincoln, 1 Low. 71. At the same time the libelant should receive large compensation. He took a serious pecuniary risk upon himself. The expenses were onerous, and he was very fortunate in saving the entire cargo. A very competent witness for the complainant testified that $1,000 or $1,200 would have been a fair contract price for the attempted services to vessel and cargo, without reference to a salvage service. Under all the circumstances of pecuniary risk and expense to the libelant, $1,000 is a proper sum to be allowed him for his salvage service upon the cargo. It is true that, "as a general rule, the court will not assess a different ratio of salvage upon different parts of the property according to the labor expended upon those parts, although it may do so if the justice of the case requires it." The Albion Lincoln, 1 Low. 71. The assessment of $1,000 upon the cargo is a different ratio from that which the libelant accepted upon the top-hamper, but the large expenses of the Chester were necessary to save the hull and cargo, while the services upon the top-hamper were far less expensive. I think that the justice of the case requires that the difference which the libelant recognized should be regarded, and that, if the

amount of salvage upon the cargo should be cut down to 40 or 50 per cent., the result would be inequitable. Let judgment be entered for the libelant for $1,000, and costs.

THE BARRACOUTA.

CUMMING et al. v. THE BARRACouta.

(District Court, S. D. New York. July 3, 1889.)

SHIPPING-BILL OF LADING NEGLIGENCE.

Chlorides having been shipped in barrels, instead of the usual carboys, on their arrival a part was found lost by leakage. The bill of lading excepted liability for leakage. Held, that negligence in the ship must be shown to render the vessel liable for the loss, and, the cargo appearing to be well stowed, and no actual negligence proved, the libel was dismissed.

In Admiralty. Libel for loss of portion of cargo.

Arnold & Greene, for libelants.

Wing, Shoudy & Putnam and C. C. Burlingham, for claimants.

BROWN, J. The above libel is filed for the loss of a portion of the contents of barrels of chloride, and 20 kegs of salt on a voyage from New York to Trinidad, in December, 1887. The bill of lading excepted liability for loss from "leakage," "effect of climate," and "heat of holds," and forbade "liquids or goods capable of doing damage being shipped, without the nature of their contents being conspicuously marked on the outside of each package." It is evident from the testimony that the loss arose from leakage, and it is incumbent upon the libelant, therefore, to prove negligence on the part of the ship. The weight of evidence shows that such chlorides have heretofore been mostly shipped in carboys. In this case castor-oil barrels were used, and between 600 and 700 pounds were put in each barrel. The use of barrels, if safe, is doubtless much more economical and less subject to breakage. The evidence shows that barrels have been employed to some extent, while some large dealers are wholly ignorant of such use, and testified that barrels were improper and unsafe packages. The correspondence between the parties seems to indicate that the barrels in this case were tried to some extent as an experiment. Without regard to these circumstances, however, I think the libelants fail to establish any such negligence on the part of the ship, as is necessary to a recovery. The Invincible, 1 Low, 225. The goods were well stowed in the hold, being undisturbed by a hurricane of great violence. Four barrels were found empty, or nearly so, when discharged, having the heads buiged outwards. The evidence also shows that the rest of these packages leaked, while the rest of the cargo in the hold was in perfect condition. There is no proof of improper stowage, and the only reasonable inference that can be drawn is that the barrels were insufficient for the weight put into them, and for chemicals of such a quality as they contained. No negligence being established, the libel must be dismissed, with costs.

DOYLE et al. v. BEAUPRE et al.

(Circuit Court, N. D. New York. July 25, 1889.)

REMOVAL OF CAUSES-TIME OF APPLICATION.

Under act Cong. March 3, 1887, (as corrected by act Aug. 13, 1888, 25 St. at Large, 433,) giving a right of removal "at the time or any time before de fendant is required by the laws of the state or the rule of the state court" to plead to the complaint, where defendant under the Code of Civil Procedure of New York was compelled to answer by October 10th an application for removal made November 19th, was too late, though under section 542 defendant might have filed an amended answer during that time.

COXE, J. The plaintiffs are citizens of New York; the defendants of Minnesota. The action was commenced in the supreme court of this state to recover $1,250. The complaint was served August 31, 1888. Under the provisions of the Code of Civil Procedure the time to answer this complaint expired October 10, 1888. An answer containing a counter-claim for $3,000 was served October 7th. The plaintiffs served a reply to this answer October 11th. The cause was removed to this court November 19, 1888. The plaintiffs now move to remand upon the ground, inter alia, that the removal was too late. In this position they are right. The provision of the Code (section 542) permitting pleadings to be amended does not aid the defendants. The language of the act of March 3, 1887, (corrected by the act of August 13, 1888, 25 St. at Large, 433,) which provides that the cause may be removed to the circuit court "at the time or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff," is clear and explicit. It cannot be construed to mean that the cause may be removed at any time before the expiration of an indefinite period contingent upon an answer containing a demand for affirmative relief and a reply thereto. The time to answer the complaint expired October 10th. In default of an answer on that day the plaintiffs were entitled to judgment. An answer having been served, the removal, 40 days afterwards, was too late, notwithstanding the fact that during that period the defendants might have served an amended answer Manley v. Olney, 32 Fed. Rep. 708; Dwyer v. Peshall, Id. 497; Railroad Co. v. Houston, Id. 711; Wedekind v. Southern Pac. Co., 36 Fed. Rep. 279; Coal Co. v. Waller, 37 Fed. Rep. 545; Hurd v. Gere, 38 Fed. Rep. 537; Lockhart v. Railroad Co., Id. 274; Dixon v. Telegraph Co., Id. 377; Kaitel v. Wylie, Id. 865. The motion to remand is granted.

v.39F.no.5-19

RIDDLE et al. v. NEW YORK, L. E. & W. R. Co.

(Circuit Court, W. D. Pennsylvania. July 9, 1889.)

COURTS-FEDERAL JURISDICTION-INHABITANT OF DISTRICT-CORPORATIONS. Where a corporation, created by the laws of one state, by its officers or agents, comes into a judicial district of another state, and there carries on business, for example, operates lines of railway therein and has there an agent upon whom, under the laws of the latter state, process may be served, -it is an inhabitant of said district, within the meaning of the act of congress of March 3, 1887, and is suable in the circuit court of the United States of said district.

Sur Motion to Set Aside the Service of a Writ of Summons.
George Shiras, Jr., for the motion.

James L. Black, contra.

Before MCKENNAN and ACHESON, JJ.

PER CURIAM. This is an action brought for the recovery of damages for the alleged violation by the defendant, The New York, Lake Erie & Western Railroad Company, of the act of congress to regulate commerce, approved February 4, 1887. Two of the plaintiff's are citizens of the state of Pennsylvania, and one of them is a citizen of the state of Illinois, and the defendant is a corporation constituted under the laws of the state of New York. The ground of the motion to set aside the service of the writ of summons is that the defendant corporation "is not an inhabitant of the Western district of Pennsylvania, and that this court has therefore no jurisdiction in said case as against the said company." In support of the motion the defendant relies upon that clause of the act of congress, approved March 3, 1887, (24 St. at Large, 552,) and re-enacted August 13, 1888, (25 St. at Large, 433, 434,) which provides as follows:

"But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states suits shall be brought only in the district of the residence of either the plaintiff or the defendant."

The marshal's return shows that the defendant company was summoned by service upon "Samuel Woodside, agent of said company, at their office in the city of Pittsburgh;" and the plaintiffs' statement of claim, which for the present purpose must be accepted as true, sets forth that the defendant company is doing business in the Western district of Pennsylvania, and has a permanent office in the city of Pittsburgh, in said district, with an officer or agent duly appointed thereto in charge of the defendant's business; that under certain recited written traffic contracts it acquired and possesses the right to transport freight over the lines of the Pittsburgh & Lake Erie Railroad Company, which in part are located within said district; that the defendant's own railroad is in part

constructed within said district, and has for years past been, and is now, operated by the defendant company, with offices established thereon and officers appointed thereto, regularly and permanently in charge of the business on said line of road; and, further, that the defendant is, and from about May 1, 1883, has been, the lessee of the New York, Pennsylvania & Ohio Railroad, which in part is constructed through said district, and that the same has since been, and now is, operated by the defendant company, with offices permanently established thereon, and officers duly appointed thereto, in charge of the business thereof. Such being the facts, we are called upon to decide whether the defendant company is exempt from suit brought in this court.

Without undertaking to cite the numerous cases (federal and state) bearing upon the subject, we think we are safe in saying that it is now firmly settled that when a corporation created by the laws of one state voluntarily comes, by its officers or agents, within the jurisdiction of another state, and there engages in business, it becomes amenable to the process of the courts of the latter state, if the laws thereof make provision to that effect. In one of the cases (Insurance Co. v. Duerson, 28 Grat. 630) it was declared by the court of appeals of Virginia that the corporation, for the purpose of being sued, is to be considered as having a domicile in the state where it has thus voluntarily located; and in the case of Insurance Co. v. Woodworth, 111 U. S. 138, 145, 147, 4 Sup. Ct. Rep. 364, the supreme court of the United States did distinctly hold that a company incorporated in one state, by doing business and having an agent. upon whom service may be made in another state, may there acquire another domicile, so as to give locality there to a debt on a policy of insurance as the foundation of administration in the latter state. That the defendant corporation is suable in the courts of Pennsylvania, and that such service as we have in this case would be a good service in the courts of the state, is undeniable. Hagerman v. Slate Co., 97 Pa. St. 534; Act March 21, 1849, (Purd. Dig. 355.) What good reason, then, is there for exempting the company from suit in a federal court sitting in Pennsylvania? Can it be supposed that such was the intention of congress? Under previous laws a person was suable in any district in which he might be found. Although he might have been a mere sojourner in, or was simply passing through, the district, he was liable to be served therein with process from a federal court. This was the mischief which congress intended to remedy by omitting from the act of 1887 the words "or in which he shall be found." But, clearly, under the provisions of the act of 1887, if a citizen of a state, without changing, or intending to change, his citizenship, becomes an inhabitant of another state, or, in other words, has his domicile or fixed residence therein, he is suable in the latter state by original process from a federal court. Parker v. Overman, 18 How. 137. Now, in our judgment it was not the intention of the act to make any distinction in respect to liability to suit between natural persons and corporations. As a corporation is a "person" within the meaning of the act, so, also, may it be an "inhabitant.”

Under the facts of this case we are clearly of the opinion that the de