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ly manned and equipped, and her lights properly set and brightly burning, some six or seven minutes before the collision which afterwards occurred, her lookout reported a green light about two points on the Crosby's starboard bow, the vessels then being, as stated in the cross-libel, about a mile and a half apart, though in the testimony of the master of the Crosby he places the vessels, at the time of sighting the green light of the Van Brunt, at about five or six miles; that the master of the Crosby observed said light, and, judging it was on a vessel from the south and on a course apparently not converging with his own, continued his own course without apprehending danger; that the vessels continued to approach each other, when suddenly the other vessel, which afterwards proved to be the Van Brunt, about two minutes before the collision, changed her course, opening up her red light, and showed both lights, and then, shutting out her green light, showed only her red light on the starboard bow of the Crosby, making the collision inevitable; that in this condition the Crosby's master put his helm hard up, and his vessel had probably fallen off a point, when the two vessels came together, the Van Brunt striking the Crosby about ten feet forward of the main rigging, cutting into her starboard side and decks about five feet, causing serious injury.

These statements of the parties' contentions, respectively, show that the vessels were practically on a parallel course, each proceeding in opposite directions, and, while it was in effect admitted that the Van Brunt was the vessel having the right of way, it was conceded by both sides that the case turned entirely upon which vessel actually made the change of course which brought about the collision, as there could have been no coming together of the two vessels, had they maintained their respective courses. The correct solution of the issue thus presented necessarily depends upon the version of which vessel's crew the court will accept, as each strongly supports the contention of its respective ship; and there is little difficulty in arriving at the same, in view of the fact that the evidence very strongly preponderates in favor of the Van Brunt. The Van Brunt, at the time of the collision, had two seamen on the lookout, each of whom testified to reporting the red light of the Crosby at about a mile and a half off the port bow of their vessel, of the subsequent movements of the two vessels up to and about the time of the collision, and of the sudden change of course of the Crosby across the Van Brunt's bow, and the bringing about of the collision as contended for by the Van Brunt. The master of the Van Brunt and her wheelsman also strongly corroborate the testimony of the lookouts; and all four concur in the fact that the Van Brunt, at the time of the collision, was being navigated as contended for by her, and that her lights were properly set and brightly burning. Against this we have the testimony of the master of the Crosby and his wheelsman, who alone, until the moment of the collision, with the seaman whom it was claimed was acting as lookout, were on deck and engaged in the act of navigating the ship. The lookout was not examined, though in the employ of the Crosby for some five months after the collision, when it is alleged he disappeared. The master of the Crosby testifies strongly in favor of the contention on the part of his vessel, as hereinbefore stated, and is supported by his wheelsman; but their account the court should not accept as against that of the navigators of the Van Brunt, including the two seamen on the lookout, especially in view of the fact that the navigators of the Crosby admit that only the master and one seaman were on deck, the latter acting as lookout, and that the lookout was twice within a period of two hours, the first time about 9 o'clock, and then at about half past 10, taken off watch to assist in hauling sails, each time being absent from 10 to 12 minutes, and the last one being made about half an hour before the collision. During these periods, at least, the Crosby was without a lookout, and this may go far to account for the collision, which may have occurred during the last absence of the lookout from his post.

There was some controversy as to the direction of the wind at the time of the collision; the Van Brunt's contention being that at that time it was blowing from east by south, and the Crosby's from southeast. While in the judgment of the court this question does not materially enter into the happening of this accident, still the testimony, including that from the lightships in the vicinity, tends to support the Van Brunt's statement, as against that of the Crosby.

The conclusion reached by the court upon the whole case is that the collision resulted solely because of the fault of the Crosby's navigators in failing to keep out of the way and changing her course across that of the Van Brunt at a time when it was too late for the latter to avoid the consequences of such change; and a decree may therefore be entered so ascertaining.

MOYER v. CHICAGO, M. & ST. P. RY. CO.
(Circuit Court, W. D. Missouri, W. D. February 18, 1909.)

No. 3,426.

1. REMOVAL OF CAUSES (§ 12*) - RESTRICTIONS AS TO DISTRICT IN WHICH SUIT MIGHT HAVE BEEN BROUGHT.

Where an action is brought against a corporation in a court of a state, whereof it is not a citizen, by a citizen of another state, such action may not be removed into a federal Circuit Court sitting in the state where the action is brought, unless the plaintiff expressly or impliedly assents to such Circuit Court entertaining jurisdiction.

[Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 32, 33; Dec. Dig. § 12.*]

2. REMOVAL OF CAUSES (§ 12*) - RESTRICTIONS AS TO DISTRICT IN WHICH SUIT MIGHT HAVE BEEN BROUGHT-WAIVER.

The written consent by counsel for a plaintiff to the filing of a general demurrer out of time by the defendant in a federal court after removal of the cause was such a recognition of the jurisdiction of the court over the person of plaintiff as to constitute a waiver of a subsequent plea to the jurisdiction on the ground that neither party was a citizen of the state of suit.

[Ed. Note. For other cases, see Removal of Causes, Cent. Dig. §§ 32, 33; Dec. Dig. § 12.*]

On Plea to Jurisdiction.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Laughlin & Kenworthy, for plaintiff.
Frank Hagerman, for defendant.

POLLOCK, District Judge. This action was brought in the state court by plaintiff to recover from defendant damages for personal injury sustained through the alleged negligence of the defendant while plaintiff was riding on one of its trains as railway postal clerk in the employ of the government.

In due time after the institution of the action, defendant, a corporate citizen of the state of Wisconsin, filed its petition and bond for removal of the controversy into this court. In the petition for removal it is alleged as a ground of federal jurisdiction that plaintiff is, and was at the date of the commencement of this action, a citizen and resident of this state, and the defendant a citizen of the state of Wisconsin. An order of removal was entered in the state court, and transcript duly lodged in this court. Thereafter, and on the 11th day of November, 1908, plaintiff filed in this court its plea to the jurisdiction of the court, wherein it is alleged that plaintiff was at the date of the commencement of this action a citizen of the state of Kansas, and not a citizen of this state, as alleged in the petition for removal,. and that defendant is, and was at the date of the commencement of this action, a citizen of the state of Wisconsin. Wherefore, it is pleaded this court is without jurisdiction. Although no answer or reply was filed to this plea by defendant, a stipulation waiving a jury to try the question of fact raised by the plea was filed, and the evidence taken in open court. At the conclusion of the testimony it was found by the court, and so announced, that the plaintiff at the date this action was commenced was a citizen of the state of Kansas, as alleged in the plea, and not a citizen of this state, as charged in the petition for removal. Thereupon the question of law arising on this state of facts was taken under advisement by the court, with leave to counsel for respective parties to file briefs thereon. None have been filed, and the case comes now on for decision on the record and facts found on the trial of the plea.

As the plaintiff at the date of the commencement of the action was a citizen of the state of Kansas, and the defendant a citizen of the state of Wisconsin, it is quite well settled by many decisions of the Supreme Court this action could not have been brought and maintained, under the terms of the present judiciary act, in this court, without the consent of defendant, actual or implied. Shaw v. Quincy Min. Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; Galveston, etc., Railway v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248; Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264; In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904. As the case could not have been originally brought in this court by the plaintiff without the consent of defendant, it cannot be removed into this court by defendant without the consent of the plaintiff, for it is quite well settled no case can be removed into a Circuit Court of the United States from a state court unless the case could have been originally brought in such Circuit Court. Cochran v. Montgomery County, 199 U. S. 260, 26 Sup. Ct. 58, 50 L. Ed. 182; Ex parte Wisner, supra; In re Moore, supra; Western Loan Co. v. Butte & Boston Min. Co., 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1136. That is to say, although the requisite diversity of citizenship exists to confer jurisdiction on a Circuit Court of the United States, yet, when a transitory action is originally brought in such Circuit Court against a corporate citizen of this country, it must be brought in the judicial district of which such citizen is a resident or inhabitant, and in the state of which it is a citizen, unless it expressly or impliedly consents to the bringing of an action against it in another district or state.

Again, where an action is brought against it in a court of a state, whereof it is not a citizen, by a citizen of a state other than that in which the action is brought, such action may not be removed into a federal Circuit Court sitting in the state where the action is brought, unless the plaintiff expressly or impliedly assents to such Circuit Court entertaining jurisdiction. Ex parte Wisner, supra; In re Moore, supra; Western Loan Co. v. Butte & Boston Min. Co., supra.

However, in all such cases as the requisite diversity of citizenship of the parties exists, a Circuit Court of the United States has complete, original jurisdiction of the subject-matter of the controversy, when the jurisdictional amount is involved, concurrent with that of the courts of the state. The want of jurisdiction is purely personal, and, being personal, may be waived by the person. This is fully demonstrated by Mr. Justice Brewer, delivering the opinion of the court, in Re Moore, supra, arrived at from a review of many decisions of that court. Viewed in this light, it is apparent the plea to the jurisdiction under consideration must be sustained on the facts found, unless the parties by their acts done are found to have waived their right to object to the jurisdiction of this court over their persons.

The petition and bond for removal filed by defendant on which the controversy was transferred from the state court into this court is in the nature of original process (Kinney v. Columbia Savings, etc., Ass'n, 191 U. S. 87, 24 Sup. Ct. 30, 48 L. Ed. 103), and irrevocably thereafter concluded the defendant from raising any question of the jurisdiction of this court over its person. Therefore the only remaining question for decision is, has plaintiff done any act or taken any step in this court, as shown by the record, after removal taken by defendant to this court, which should be construed as a recognition of the jurisdiction of this court over his person, and a waiver of his right to insist on having the case remanded to the state court on his plea? As has been seen, the plea to the jurisdiction of this court was filed November 11, 1908, and as this plea goes exclusively to the question of the jurisdiction of this court over the person of plaintiff, it is obvious nothing therein contained may be considered as a recognition of the jurisdiction of this court thus called into question by the plea. However, as found from an examination of the record on the 7th day of November, 1908, four days prior to the filing of this plea, defendant filed a general demurrer to the petition of plaintiff. This demurrer was interposed by defendant out of time, and could not have been then filed without leave of court or consent of plaintiff's counsel. Indorsed on this demurrer, in the handwriting of counsel for plaintiff, is found the following language: "This may be filed as of proper date. Laughlin & Kenworthy, Plff. Attys." It is thus seen counsel for plaintiff consented to the making up of an issue of law for the determination of this court, and in recognition of its jurisdiction and right to proceed to trial of the case. It was held in Re Moore, supra, the filing of an amended petition by the plaintiff in the Circuit Court after removal, or stipulating for a continuance of the cause, was such a recognition of the jurisdiction of the federal court by plaintiff, after removal by defendant, as constituted a waiver of the right of plaintiff to object thereto. Therefore I am of the opinion the consent given by counsel for plaintiff to the making up of the issue of law raised in and to be heard by this court on the filing of the demurrer to the petition, in the light of the foregoing case, and the case of Western Loan Co. v. Butte & Boston Min. Co., supra, is such a recognition of the jurisdiction of this court over the controversy removed, and the person of the plaintiff thereto, as will constitute a waiver of the plea thereafter interposed.

For this reason, the plea, although found to be true in point of fact, will be denied as a matter of law. It is so ordered.

YORK MFG. CO. v. MERCHANTS' REFRIGERATING CO. et al.

(Circuit Court, W. D. Missouri, W. D. March 2, 1909.)

No. 3,333.

BANKRUPTCY (§ 387*) - COMPOSITION-REFUSAL OF CREDITOR TO ACCEPT-ELEC

TION.

A creditor of a bankrupt corporation, claiming a lien for part of his debt, who refused to accept securities of a reorganized corporation, tendered to him pursuant to a composition agreement confirmed by the court. and commenced a suit to establish and enforce his lien, is not entitled to have such securities impounded pending the suit, that he may have them, if unsuccessful, especially when the company issuing the same is not a party to the suit.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 387.*]

In Equity. On demurrers to supplemental bill of complaint herein filed.

Scott, Bancroft & Stephens and Borland, Goodwin & Pew, for complainant.

F. V. Kander, Botsford, Deatherage, Young & Creason, A. F. Evans, Wm. B. Sutton, E. L. Scarritt, and W. C. Scarritt, for defendants.

POLLOCK, District Judge. This suit was brought by complainant for the purpose of procuring a decree foreclosing a mechanic's lien claimed to have been perfected by it against the Merchants' Refrigerating Company, defendant herein, and others, in accordance

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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