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THE CITY OF TROY, etc.

(District Court, N. D. New York. 1882 )

COLLISION—DAMAGES-REPORT OF COMMISSIONER.

The estimate of damages as reported by the commissioner in a cause of col. ligion adopted by the court.

In Admiralty.
P. C. J. De Angelis, for motion.
E. D. Mathews, opposed.

CoxE, D. J. This is a motion to confirm the report of the commissioner, and for a final decree in favor of the libelant. The respondents have filed exceptions and oppose the motion, insisting that the commissioner has placed the damages at too high a figure. The commissioner reports that the amount of damage sustained by the libelant by reason of the matters set forth in the libel is the sum of $575. I have read all the evidence taken by the commissioner, and do not feel justified in interfering with his conclusions. Three witnesses were sworn for the libelant, who place the damage to the injured boat at $800, $1,000, and $800, respectively. Two witnesses for the respondent place the damage at $250, and from $200 to $300, respectively. Their evidence, however, indicates that they did not see the boat until partial repairs had been made, some time after the collision.

If the question of damages, as an original proposition, was to be here decided, I do not see how, upon this evidence, they could be placed at a sum much below the amount stated in the report, assuming that the witnesses are entitled to equal credit. The commissioner, from personal observation of the witnesses, having had an opportunity to note their manner while testifying, is much better able to estimate correctly the weight to be given to their opinions than one who simply reads the written testimony,

The motion should be granted.

Presumptions.

LINCOLN and others o. FRENCH. In error to the circuit court of the United Staies for the district of California. This case was determined in the supreme court of the United States at the October term, 1881. Mr. Justice Field delivered the opinion of the court, reversing the judgment of the circuit court, and remanding the cause, with directions to enter judgment in favor of the plaintiffs in error.

Although a duty to reconvey land conveyed for the purpose of building a railroad arose when, by the terms of the trust deed, the time had passed within which the work was to be done, and the conditions upon which the trust was to be executed had become impossible, a reconveyance was to be presumed only in the absence of proof to the contrary. Like other presumptions, it is sufficient to control the decision of the court if no rebutting testimony is produced. But all presumptions as to matters of fact, capable of ocular or tangible proof, such as the execution of a deed, are in their nature disputable. No conclusive character attaches to them. Presumptions are indulged to supply the place of facts, but they are never allowed against ascertained and established facts. When these appear, presumptions disappear.

J. H. McKune, A. T. Britton, and J. H. McGowan, for plaintiffs in error. John Reynolds and S. O. Houghton, for defendant in error.

Admiralty-Jurisdiction-Maritime Tort.

LEATHERS v. BLESSING, U. S. Sup. Ct., Oct. Term, 1881. Appeal from the circuit court of the United States for the district of Louisiana, decided in the supreme court of the United States, May 8, 1862. Mr. Justice Blatchford delivered the opinion of the court, affirming the decree of the circuit court.

Where the master and officers of the vessel, just arrived and moored to the wharf, were accustomed to permit persons expecting to find on the vessel freight consigned to them, as soon as she had landed and her gang-plank run out, to go on board of her to examine the manifest, or transact any other business with her master or officers, and libelant went on board to ascertain whether a consignment of cotton seed had arrived on her, under such circumstances the relation of the master and of his co-owner, through him, to libelant is such as to create a duty on them to see that libelant is not injured by the negligence of the master; and if he is injured by a bale of cotton being negligently allowed to fall on him, it is a maritime tort, and cognizable in admiralty.

J. G. Carlisle, for appellant.
Durant & Hornor, for appellee.

Cases cited: Waring v. Clark, 5 How. 441; Phila., W. & B. R. Co. v. Phila., etc., Co. 23 How. 209.

WEBBER v. BISHOP and another.

(Circuit Court, N. D. New York. 1882.)

REMOVAL OF CAUSE-CONDITONS IN BOND.

It is essential that the bond contain a provision for the payment of costs, and the objection that it does not may be taken at any time.

James Wood, for motion.
George Truesdale, opposed.

Coxe, D. J. This action was commenced in the supreme court of the state of New York. In June last, proceedings to remove it into this court were taken. This motion is to compel the treasurer of Monroe county to pay to the plaintiff the sum of $250, deposited as security for defendants' costs, pursuant to an order of the state court. Opposition is made solely on the ground that the cause was not properly removed. Various alleged irregularities are pointed out, only one of which will be considered. The bond filed with the petition of removal in the state court was drawn pursuant to section 639 of the Revised Statutes; it does not contain the provision as to costs required by section 3 of the act of 1875.

The defendants contend that this is a fatal omission, affecting the jurisdiction of this court; that it is not a mere irregularity, or a defect that can be cured by amendment.

The case of Torrey v. Grant Works, 14 Blatchf. 269, clearly sustains this view. In his opinion Judge Blatchford says, at page 270:

“The limitation of time within which the petition may be filed, and the fact that, under section 639, it may be filed at a later period than it can be under the act of 1875, has nothing to do with the character of the bond. The present suit is one which falls within the provisions of section 3 of the act of 1875, in regard to the terms of the bond required. It is a suit at law of a civil nature, brought in a state court, in August, 1875. The matter in dispute exceeds, exclusive of costs, the sum or value of $500, and it is a suit in which there is a controversy between citizens of different states. It is, therefore, a suit mentioned in section 2 of the act of 1875, and one of the parties to it has undertaken to remove it by filing his petition for removal in the state court. He may be in time, because within the time limited by subdivision 3 of section 639, although not within the time limited by section 3 of the act of 1875; but, even if he claims the benefit of the longer time allowed by section 639, he must give the bond prescribed by the act of 1875. He has not giveli such a bond. The bond he filed contained no provision for costs.”

The learned judge further held, following a decision of Judges McKennon and Cadwalader, (9 Chi. Leg. News, 324,) that the require

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ment of section 3 of the act of 1875, in regard to the nature of the bond, extends to a case sought to be removed under section 639 of the Revised Statutes, and to that extent, at least, the act of 1875 repeals all prior acts on the subject; and that if the required bond has not been filed the court has no jurisdiction. See, also, Burdick v. Hale, 7 Biss. 96.

There is, apparently, no distinction in principle between the case of Torrey v. Grant Works and the case at bar. The reasoning in that case is decisive of the question here involved.

It is insisted that no advantage can be taken of a defect in the bond upon a motion of this character; that in order to avail themselves of it defendants must make a formal motion to remand the cause. Even if the plaintiff is correct in this view, it would, it seems, be the duty of the court, if convinced that the cause was improperly removed, to stay the proceedings until the defendants have had a reasonable opportunity to make this motion. But, upon the authority of the Torrey Case, the position is not well taken. The question there arose, not upon a motion to remand, but upon a motion, in effect, not unlike the motion here. The question being one of jurisdiction, the defendants can at all times take advantage of the defect. Should the case remain and the plaintiff succeed, if confronted with the same objection in the supreme court, it might lead to a reversal of his judgment.

The motion must be denied.

DWIGHT and others v. SMITH and others.

(Circuit Court, D. Vermont. July 22, 1882. 1. RAILROADS-FIRST-MORTGAGE BONDS.

When money applicable to the payment of first-mortgage bonds of a railroad company has come into the hands of the trustees for the bondholders, each holder at that time becomes immediately entitled to the share of the money

applicable to his bond, and can immediately recover the same. 2. SAME-RIGHTS OF BONDHOLDERS.

The question whether the bondholders, who have acquired their bonds since money in the hands of the trustees applicable to the bonds accrued, are entitled to share in that money, depends upon the nature of the right, and of the trans

action by which they acquired the bonds. 3. SANE-EQUITABLE RELIEF.

The debt for which the bonds issued was a debt of the company, and property in the hands of the trustees is security for that debt, and when the debts pags the securities pass also, unless a contrary intention is shown, and the time when

the parties secured their bonds is not material; and where there has accrued & large amount of money applicable and not applied on the bonds after satisfy. ing prior liens, the bondholders are entitled to relief against those having the money.

In Equity.
Francis H. Brooks and Edward J. Phelps, for orators.
Daniel Roberts, for defendants.

WHEELER, D. J. This cause has now been heard on demurrer to the amended bill. The bill states many things not material or pertinent to the case actually made, and many conclusions of law, without the facts leading to such conclusions. As it is, however, it shows in substance that the orators are severally holders, to a large amount in all, of the first-mortgage bonds of the Vermont Central Railroad; that the trustees of the mortgaged estate for the bondholders have been in possession of the property for a long time, and received therefrom money applicable to the bonds, and have not paid it over to the bondholders, but have diverted it to their own private uses, or otherwise, and have, in alleged violation of their trust, turned over the property to the Central Vermont Railroad Company, of which the trustees are leading officers and stockholders, and which has also received money therefrom applicable to the bonds and not paid over, whereby the trustees have become hostile in interest to the bondholders. The trustees, the Central Vermont Railroad Company, and the officers of that company actively engaged in the management of the property, are all made defendants.

The principal questions raised by the demurrer and not before disposed of in this litigation, either in this case or some other, are whether the orators can properly unite in bringing and maintaining this bill; whether they show any right to relief without showing that they were owners of the bonds at the time when the avails of the property applicable to the bonds accrued; and whether the bill shows any sufficient ground for relief.

It is doubtless true, as has been now argued and before held in this case, that when money applicable to the payment of the bonds has come to the hands of the trustees for the bondholders, each holder at that time became immediately entitled to the share of the money applicable to his bond, and could immediately recover the same to himself. If nothing was involved but the recovery from the trustees of such money, the right of each bondholder to the share of the money belonging to him would be several, and exclusive of the other

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