THE SARAH E. KENNEDY.

MCCARTHY and others v. THE SARAH E. KENNEDY.

(District Court, D. New Jersey. November 11, 1885.)

ADMIRALTY PRACTICE-CONSOLIDATION OF SUITS-LIBELS FOR WAGES AND REDUCTION OF PROVISIONS-REV. ST. §§ 978, 4568.

The several libels filed by the crew of a vessel for wages due, and for compensation and allowance for the reduction of provisions during a voyage, may be consolidated.

Libels in Rem. Motion to consolidate, etc.

Bedle, Muirheid & McGee, for libelants.

Owen & Gray, for respondent.

NIXON, J. Fourteen several libels have been filed by the crew of the brig Sarah E. Kennedy for wages due, and for compensation and allowance for the reduction of provisions during the voyage. A motion is now made by the claimant for a consolidation of the suits. It is resisted by the proctors for libelants on the ground that the additional claim of the several libelants for compensation, on account of the bad quality of the provisions furnished for the voyage, takes the cases out of the category of actions that should have been joint, or should be consolidated. The motion must prevail. See The Prinz Georg, 19 Fed. Rep. 653. Indeed, it would be a great hardship for the libelants to refuse it, inasmuch as the court is forbidden to allow them more than the costs of one libel, although they may recover in all the suits. It is provided in section 978 of the Revised Statutes that when proceedings are had before a court of the United States in several libels against any vessel and cargo which might legally be joined in one libel, there shall not be allowed thereon more costs than in one libel, unless special cause for libeling the vessel and cargo separately is satisfactorily shown on motion in open court. No such cause is shown in these cases. The claim for allowance on account of insufficient supply of proper food is in addition to their wages, and is specifically provided for in section 4568, Rev. St. The principles on which compensation is to be awarded to the seamen are so clearly stated in the statute, that quite as little difficulty will arise in determining the amount in one libel, as occurs in ascertaining the several sums due for wages earned.

Let an order be entered consolidating the several suits.

MALOY V. DUDEN and others.

(Circuit Court, S. D. New York. December 19, 1885.)

1. REMOVAL OF CAUSE-FOREIGN CITIZENS.

Declaration of intention to become a citizen of the United States does not make the citizen or subject of a foreign country cease to be such, within the act of March 3, 1875, so as to prevent his removal of a suit from the state

court.

2. SAME-ALIENS-FOREIGN NATURALIZATION-PROOF OF.

The defendant's affidavit, together with an official passport certifying the naturalization of the defendant as a British citizen, held sufficient prima facie evidence that the requirements of the English statutes had been complied with. 3. SAME-TRIAL-WHEN BEGUN.

Where a cause was called on the day calendar for trial, and objections were immediately urged by the defendants that the cause was not in readiness for trial, because the time granted to amend the answer had not expired, and a motion was pending to vacate that order, and thereupon the trial judge sent the case to another part of the court to hear the motion and objections, and suspended any further proceedings in the cause until the objections and motion were disposed of, and before the motion was heard the cause was removed into this court, held, that the trial had not commenced within the ruling of the supreme court in the Removal Cases, 100 U. S. 473, and that the cause was removed in time.

Motion to Remand.

Jas. M. Lyddy, for plaintiff.

Ira L. Bamberger, for defendant Duden.

Frankenheimer & Rosenblatt, for defendant Baillie.

E. C. Jones, of counsel for defendants.

BROWN, J. This cause, originally commenced in the supreme court of the state of New York, was removed to this court on the ground that the defendants were foreign citizens and subjects, the plaintiff being a resident of this state. A motion is now made to remand the

cause.

1. The first ground on which a remand is claimed is because the defendant H. Duden, a naturalized citizen of Great Britain, some two years ago filed his declaration of intention to become a citizen of the United States. He has never applied for or obtained admission to be a citizen of this country, or his final certificate of naturalization. This point has, in substance, been directly adjudicated by Mr. Justice MILLER in the case of Lanz v. Randall, 4 Dill. 425, and overruled on the ground that the foreign citizen or subject remained such until naturalization was complete according to the laws of congress, although, by the state laws, he might vote or hold office after the mere declaration of intention to become a citizen. The passport issued by Earl Granville to this defendant, in 1880, as a British citizen, together with the defendant's affidavit, furnish sufficient prima facie evidence that the requirements of the English statutes of naturalization had been complied with. No renunciation of allegiance to Great Britain was required by our law (section 2165) to be made at v.25F, no.12-43

the time of the declaration of intention to become a citizen of the United States. If such a renunciation was made at that time, it was immaterial, and so far as appears did not make the defendants cease to be citizens of Great Britain.

2. The second ground upon which the motion to remand is urged is that the cause was removed too late, to-wit, after the trial in the state court had been commenced. The case had been noticed for trial by the plaintiff, and placed upon the equity calendar. It was called upon the call of the day calender on November 2d. The defendants, among other objections, contended that the cause was not in a condition for trial, because the time for serving an amended answer had not expired under an order obtained from one of the judges of the court granting further time for that purpose. The plaintiff, before the call of the cause on the day calendar, had given notice of a motion to vacate the order granting the further time to answer. Upon the statement of these facts to the trial judge, he directed the motion to vacate to be heard in another part of the court, before the judge engaged in hearing motions, and suspended further proceedings before him until that motion should be determined. On going before the motion judge the hearing was adjourned until the fourth of November; and, before the hearing of the motion was reached, the cause was removed to this court, as above stated.

In a case otherwise within the removal act of 1875, it is the right of the defendant to remove the cause at any time "before the trial thereof." This, as construed by the courts, means before any step is taken in the actual trial of the cause, such as the impaneling of the jury. St. Anthony, etc., v. King, etc., 23 Minn. 186.

In Removal Cases, 100 U. S. 473, the court say:

"We agree that, as a general rule, the petition must be filed in a way that it may be said to have been in law presented to the court before the trial is in good faith entered upon. There may be exceptions to this rule, but we think it clear that congress did not intend, by the expression before trial,' to allow a party to experiment on his case in the state court; and, if he met with unexpected difficulties, stop the proceedings, and take his suit to another tribunal. But to bar the right of removal, it must appear that the trial had actually begun, and was in progress in the orderly course of proceeding, when the application was made. No mere attempt of one party to get himself on the record as having begun the trial will be enough. The case must be actually on trial by the court, all parties acting in good faith, before the right of removal is gone."

In the present case, it is clear that no step in the actual trial of the cause was taken. The right to try the case at all was challenged by the defendants as soon as it was called on the day calendar. On hearing these objections all further proceedings in the cause were suspended until that preliminary question should be determined; and, in order to determine it, the cause was sent into another part of the court. As that question has not yet been determined, I think, under the rule laid down by the supreme court, it is clear that the trial had not been act

ually begun; and that, apparently, the cause was not even in a condition to be tried. In this decision I take into consideration only the record, including the special term certificate, the affidavit, and order extending the time to answer, and the objections taken before the trial judge.

The motion to remand must be denied.

PETREL GUANO Co. and others v. JARNETTE and others.

(Circuit Court, E. D. North Carolina. November Term, 1885)

1. SHIPPING LAWS-TRANSPORTATION BY FOREIGN VESSELS BETWEEN AMERICAN PORTS.

Section 4347, Rev. St. United States, forbidding the transportation of merchandise in foreign bottoms from one port of the United States to another port of the United States, and imposing a forfeiture of cargo as penalty for such transportation, means, by the word "port," any place from which merchandise may be shipped.

2. SAME

REMISSION OF PENALTY-MODE PRESCRIBED.

The forfeiture of cargo imposed as penalty under Rev. St. United States, § 4347, can only be remitted under the mode prescribed in Rev. St. United States, § 5229, which requires a petition to the district judge, a summary inquiry by him into the circumstances, and a transmission of the facts to the secretary of the treasury.

3. SAME ILLEGAL CONTRACT-ILLEGALITY RENDERS CONTRACT VOID.

The illegality of a contract, and not the penal tax and forfeiture imposed as penalties under the law which declares the illegality, makes the contract void.

4. SAME-EXECUTION OF ILLEGAL CONTRACT-EFFECT AS TO FREIGHT.

A foreign vessel contracting to carry merchandise in violation of the prohibition contained in section 4347, Rev. St. United States, earns no freight by executing the contract.

5. SAME-ILLEGAL CONTRACT-EFFECT OF REMISSION OF PENALTY.

No remission of a forfeiture imposed under a statute legalizes a contract illegal under that law.

6. EQUITY-PENALTIES AGAINST WHICH IT Relieves.

The penalties against which equity relieves are those imposed by contract, and not those imposed by law.

In Equity.

Russell & Ricaud, for plaintiffs.

J. D. Bellamy and A. G. McGrath, for defendants.

SEYMOUR, J. This is a suit in equity, brought by partners resident in New York against a member of the firm resident in North Carolina, to recover partnership assets; and the main subject of the controversy has been the disposition of three cargoes of guano shipped by the defendant Jarnette from the island of Roncados in the Caribbean sea to Wilmington. Jarnette was the agent of the copartnership, as well as a member of the firm, and was in charge of the partnership operations on the island of Roncados. The plaintiffs furnished the money capital, agreed to send shipping to Roncados for

the guano, and employed an agent other than Jarnette to attend to the shipments, which were to be made to New York or Philadelphia. It is averred by the plaintiffs that, in violation of the written contract between the copartners, and for the purpose of defrauding them, the partner who is made a defendant shipped the guano to Wilmington to his own order, with the purpose of disposing of the same and defrauding them; and collusion and the manufacture of false and fraudulent charges for advances are charged against the other defendants. The defendant, on the other hand, replies that he was abandoned by his copartners; left, with his laborers, without supplies, on a desert island; compelled to risk his life in a long sea voyage in an open boat to Aspinwall, the nearest port; and that his acts which were not in pursuance of the contract were rendered necessary by the conduct of the plaintiffs and the exigencies of his position. The other defendants have answered, denying the fraud and combination, of which indeed no proof was offered. All the questions arising in the case have been decided by an interlocutory opinion rendered by the court, and a settlement of the matters in dispute founded thereon, excepting one, viz., the claim of the defendant, master of the British vessel, the Iolanthe, for freight. This is resisted by the plaintiffs on the ground that Roncados is an island belonging to the United States, and within the provision of its coasting laws, and that it was illegal to ship goods therefrom to any other port in this country. The neccessary consequence of the illegality of such shipment is, it is claimed, that no freight was earned by the Iolanthe.

The island of Roncados is one of what are known as the "Guano Islands" of the United States. By section 5575 of the Revised Statutes it is enacted that "the introduction of guano from such islands" "shall be regulated as is the coasting trade between different parts of the United States, and the same law shall govern the vessel concerned therein." The policy of the United States, as developed in its statutory regulation of the coasting trade, is to entirely exclude the use of foreign bottoms from such employment. By the Revised Statutes (section 4219) a duty of 50 cents a ton is imposed on a vessel, not of the United States, which shall be entered in one district from another, having on board merchandise taken in one district to be delivered in another. This duty is called by the assistant secretary of the treasury, in his communication to the collector of the port of Wilmington, in the case of The Iolanthe, a penal duty, and its amount shows that it is intended to be prohibitory. The Revised Statutes (section 4311) enacts that "vessels enrolled, and having a license in force, and no others, shall be entitled to the privilege of vessels employed in the coasting trade." Section 4131 enacts that vessels registered pursuant to law, and no others except such as shall be duly qualified according to law, shall be deemed vessels of the United States; and section 4132, that vessels built within the United States (or captured, etc.) and belonging wholly to citizens thereof, "and no