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First. It will direct that the bill be dismissed, with costs, as against the parties as to whom the order on the demurrers determined that it should be dismissed.
Second. The decree will declare the amount remaining due to the estate of Robert G. Ingersoll according to the agreement of August 17, 1891, with interest to be computed on the balance at 6 per cent. per annum, simple interest, from the time the compromise agreement described in our former opinions became finally effective as a judgment of the courts of the state of Montana, such interest to be included with the balance remaining unpaid on the principal, making a total amount, with a further declaration that such total amount carries interest at the rate of 6 per cent. per annum, simple interest, from the entry of the decree herein.
Third. It will declare a personal judgment against Henry A. Root for the amount so determined, to be executed against him, so far as the same is not liquidated, from the interests subject to the complainant's lien.
Fourth. It will make perpetual the interlocutory injunction granted on September 6, 1904, so far as the same is applicable to the final decree.
Fifth. It will declare that nothing in the decree is intended to contravene, or shall contravene, any action of any probate tribunal in Massachusetts with reference to distribution, or to any order or judgment remitting to the courts of the domicile.
Sixth. It will declare a lien or liens in favor of the complainant for the total amount remaining due as stated, with interest thereon from the entry of the decree as stated, on the several interests which this opinion, as interpreted in connection with our former opinions, finds to be subject thereto; and in this respect it shall state in detail and clearly the property within this jurisdiction which, according to said opinions, is subject to such decree, and describe specifically the separate portions thereof subject thereto, and by whom each of the same was originally owned or possessed, and by whom each is at the entry of the decree owned or possessed.
Seventh. It will declare that such lien attaches, and shall attach, to each of said several interests and the proceeds of each, by whomsoever received and into whosesoever hands the same may come, whether the same are received by virtue of any order, judgment, or decree of any probate tribunal or other tribunal within the commonwealth of Massachusetts, or within the state of Montana, or elsewhere.
Eighth. It will provide distinctly and in detail for marshaling as between all of said shares and interests, and between all parties respondent in this bill who are not dismissed therefrom, and especially with reference to said Henry A. Root and Joseph A. Coram, and each of them; but it shall be declared that all of said shares and interests are jointly and severally liable, so that any marshaling shall not prejudice the complainant.
Ninth. It will provide for personal judgment against said Joseph A. Coram so far as he has received, or may receive, the proceeds of the shares of the assets within this jurisdiction pertaining
originally to Maria Cuinmings, Lizzie S. Ladd, M. Louise Dunbar, Ellen S. Cornue, or Henry A. Root, as stated in said agreement of August 17, 1891, except so far as he may be relieved by a marshaling to be provided for as already stated.
Tenth. It may, if necessary, provide for such process or supplemental proceedings as may be required on the entry of said decree, or from time to time thereafter, to secure the proceeds of said shares or interests, or either of them, subject to the marshaling as already stated, and the application of said shares or interests, or either of them, or proceeds thereof, to the extinguishment of the amount remaining due to the estate of Robert G. Ingersoll at the entry of this decree, with interest thereon, all as already stated.
Eleventh. It will provide for the recovery of a single bill of costs by the complainant against Henry A. Root and Joseph A. Coram.
Let the complainant file a draft decree, in accordance with our opinion passed down this day, on or before the 4th day of April next, the respondents to file corrections thereof on or before the 18th day of April next, all in accordance with rule 21.
THE JOSEPH B. THOMAS.
(District Court, E. D. Pennsylvania. March 24, 1905.)
1. SEAMEN-SHIPPING ARTICLES-LEGALITY OF PROVISIONS.
A provision in shipping articles that "the crew shall make no claim for wages or provisions while the vessel is detained by ice, prior to departure,” is not in violation of Rev. St. $$ 4511, 4524 [U. S. Comp. St.
1901, pp. 3068, 3076), and is reasonable and valid. 2. SAME-RIGHT TO WAGES.
Libelants signed as seamen for a voyage on a vessel then ready to sail from the port of Philadelphia, but detained by ice; the shipping articles containing a provision that they should make no claim for wages or provisions while the vessel was so detained. They went on board and were furnished light work and given their provisions for a few days, and were then sent on shore by the master, but were told to be in readiness to come back whenever the vessel should be able to get away. When that time came they could either not be found or refused to go. Held, that they were not entitled to wages for the time they were on board, nor for extra pay, under Rev. St. $ 4527 (U. S. Comp. St. 1901, p. 3077],
as upon wrongful discharge. In Admiralty. Suit by seamen to recover wages. On final hearing. Joseph Hill Brinton, for libelants.
J. Frank Staley, Francis C. Adler, and John F. Lewis, for respondent.
J. B. McPHERSON, District Judge. The libelants are seamen who signed articles on December 31, 1903, at the port of Philadelphia foi a voyage on the schooner Joseph B. Thomas to Brunswick, Ga. The vessel was then lying at a pier in the river Delaware, ready for sea, and only waiting for an opportunity to get away. She was detained because of the ice in the river, which was especially an obstruction below
the city. A tug had been engaged to tow her to the Capes; but the tug refused to undertake the work, declaring it to be too dangerous. The libelants came on board in the afternoon of January 2, 1904, and were put to shoveling snow off the deck, and during their stay on the ship they performed one or two other trifling services. The shipping articles contained this clause:
"The crew shall make no claim for wages or provisions while the vessel is detained by ice, prior to departure."
This agreement has been decided by Judge Holland to be valid, and not in conflict with sections 4511 and 4524 of the Revised Statutes (U. S. Comp. St. 1901, pp. 3068, 3076] (The Lillian (D. C.) 131 Fed. 375); but, although the master was under no obligation to feed the libelants, he furnished them with regular meals for six days, and while he then told them that he could no longer afford to do so, he gave them liberty to go ashore and see if they could find any temporary work to do. When the vessel was permitted to sail, they would be expected to come on board and fulfill their contract. Accordingly the libelants left the ship, but sent for their clothes the next day, and evidently paid no further attention to their agreement; for, when the ship was finally able to get away on January 14th, and the libelants were sent for, only two of them could be found, and they refused to go. This suit is brought for six days' wages and a month's extra pay, under section 4527 [U. S. Comp. St. 1901, p. 3077]. Upon the facts above stated, however, I do not think that any ground of recovery has been shown. The libelants expressly agreed not to claim wages or provisions while the vessei was detained by ice, and they should not be permitted to repudiate their contract. The very slight services they performed were amply compensated by the provisions they received, and, so far as I can see, they have no reason whatever to complain. They were not discharged, although they so declare, but were merely directed to await on shore the time when the ship would begin her voyage. It is true their necessities may have compelled them to accept other employment, and their failure to carry out their agreement may thus be excused; but I am unable to perceive any obligation on the part of the ship to pay wages in the face of the contract, and certainly there is no liability to a penalty, which is only to be inflicted in case of wrongful discharge.
The libel must be dismissed.
WRIGHT v. SKINNER,
SAME v. WILLIAM SKINNER MFG. CO.
(District Court, S. D. New York. April 4, 1905.) 1. BILLS IN EQUITY--ALLEGING CITIZENSHIP.
A bill in equity in a federal court need allege the citizenship of the
parties only where jurisdiction depends on diverse citizenship. 2. SAME-DEMURRER AND Motion.
Omission of a bill to allege citizenship of the parties pursuant to equity rule 20 is to be corrected by motion, not by den urrer.
3. SAME--RECOVERY OF PAYMENTS BY BANKRUPT-DEMAND.
A bill in equity by a trustee in bankruptcy to recover payments made by a bankrupt within four months prior to bankruptcy need not allege a
previous demand, though this is necessary in actions at law. 4. BANKRUPTCY-BILL BY TRUSTEE-INCONSISTENT CAUSES OF ACTION.
A bill by a trustee in bankruptcy to recover a payment of money made by a bankrupt within four months prior to bankruptcy, by alleging that the transaction amounted to a preference or a fraudulent payment, and that in either case he was entitled to its return, does not unite inconsistent causes of action,
These were demurrers to two bills in equity, filed by a trustee in bankruptcy to recover money paid by the bankrupts to the defendants within four months prior to the bankruptcy. The grounds of objection alleged in the demurrers were that the bills contained no statement of the place of abode or citizenship of the parties, as required by the twentieth equity rule, and that it appeared, by the plaintiff's own showing, by the bills, that the plaintiff was not entitled to the relief
ayed for. In support of the latter ground of demurrer, it was argued that the bills did not allege any demand before suit, and that they alleged inconsistent causes of action; one cause of action being for a return of the money on the ground that it was a preference, and the other on the ground that it was a fraudulent transfer.
James, Schell & Elkus (James N. Rosenberg and Joseph M. Pros kauer, of counsel), for complainant.
Austin B. Fletcher (William P. S. Melvin, of counsel), for defendants.
HOLT, District Judge. An allegation of citizenship is not jurisdictional, except in cases in which the jurisdiction depends on the diverse citizenship of the parties. 2 Abb. U. S. Prac. 68. An allegation of the residence of the parties is not necessary to impart jurisdiction. Teese v. Phelps, 1 McAll. 17, Fed. Cas. No. 13,818. An omission to comply with the provisions of rule 20, requiring the place of abode of the parties to be stated, is, in my opinion, not properly corrected by demurrer, but by a motion. Harvey v. Richmond, etc., Co. (C. C.) 64 Fed. 19.
The general rule established by the authorities is that, in suits in equity of this kind, a previous demand is not necessary. It is undoubtedly necessary in actions at law, but in equity the bringing of the suit is itself a suficient demand. Bruce v. Tilson, 25 N. Y. 194, 202.
The demurrers do not allege as grounds of demurrer that the bill is multifarious, or that the two causes of action are inconsistent. But in any event I think that it is not necessarily impossible that the payment may have been at the same time a preference, and a payment niade with intent to hinder, delay, and defraud creditors; and, if it is either, it seems to me that the bill may be drawn so as to meet the alternative. There is alleged in these bills one transaction, consisting of a payment of money. The plaintiff alleges that it amounted to either a preference or a fraudulent payment, and that in either case he is entitled to its return. I cannot see in such an allegation any such inherent inconsistency, as there is in those cases in which it has been held to be not permissible to unite two absolutely inconsistent causes for equitable relief, such as a claim to set aside a transfer as void, or to base a recovery on it as valid, and the other instances of legal inconsistency referred to by Judge Wallace in Wilkinson v. Dobbie, 12 Blatchf. 298, Fed. Cas. No. 17,670.
The demurrers are overruled, with costs, with leave to the defendants to answer within 10 days upon payment of such costs.
BURK V. McCAFFREY et al.
(Circuit Court, E. D. Pennsylvania. April 6, 1905.)
ABATEMENT-PENDENCY OF ACTION IN STATE COURT.
It is no ground for abatement of a suit in a federal court that an action for the same subject-matter between the same parties is pending in a state court; and it is immaterial that a counterclaim is set up in the state court, it not appearing that the same defense may not be available in the federal court.
[Ed. Note.--For cases in point, see vol. 1, Cent. Dig. Abatement and Revival, 88 87-91.
Pendency of action in state or federal court ground for abatement of action in the other, see note to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205.)
Demurrer to Plea in Abatement.
J. B. McPHERSON, District Judge. The plaintiff's action is correctly brought in the circuit court, unless the plea in abatement that has been filed by two of the defendants is well founded. The plea sets up that before the suit was brought another action had been begun by the plaintiff against all the defendants in one of the common pleas courts of Philadelphia county for the same subject-matter, asserting the same rights and asking for the same relief, and that this action in the state court is still pending and undetermined. The plaintiff has demurred to the plea, and I think there can be no doubt that the demurrer must be sustained. The decided weight of authority is in favor of the position that the pendency of a suit in one court is not a defense to an action in another court between the same parties, where one of the tribunals is a federal and the other is a state tribunal of the same state, having concurrent jurisdiction: Stanton v. Embrey, 93 U. S. 55+, 23 L. Ed. 983, and the cases cited in Rose's Notes to U. S. Reports, page 1010; Gordon v. Gilfoil, 99 U. S. 178, 25 L. Ed. 383; Barber Asphalt Co. v. Morris (C. C. A.) 132 Fed. 945; West v. McConnell, 25 Am. Dec. 195, note; Smith v. Lathrop, 84 Am. Dec. 456, note: and an elaborate note to Wilson v. Milliken (Ky.) 44 S. W. 660, 42 L. R. A. 419, 82 Am. St. Rep. 578. There are some decisions to the contrary, but the citations from the Supreme Court of the