railway, provided, that such lien shall in no event continue for a longer period than two years from the time when the debt was contracted or advances made."

Can a lien thus given be enforced in admiralty in favor of part owners? That state legislatures cannot restrict or extend the admiralty jurisdiction exclusively vested in the federal courts has been often decided and is conclusively settled. Roach v. Chapman, 22 How. 129; The Orleans v. Phoebus, 11 Pet. 175; The Chusan, 2 Story, 455; The Selt, 3 Biss. 344; The St. Lawrence, 1 Black, 522.

It follows, necessarily, that a lien given by a state statute is not the test of jurisdiction. If it were, a state legislature might, at pleasure, modify the jurisdiction of courts of admiralty by creating or abrogating liens not given by the maritime law. The distinction between cases in which the cause of action is itself within the admiralty jurisdiction, and the cases in which the admiralty, independently of the local law, has no jurisdiction, must not be forgotten or neglected. It is apparent that in the present case the real cause of action is a settlement of accounts between part owners. One has fur'nished supplies for the use and employment of a vessel, their common property. Whether, for the advances thus made, the owner furnishing supplies has any claim for repayment by his co-owners, depends upon the question whether he has advanced more than his just proportion, and for such excess has or has not been reimbursed by a correspondingly greater share of the earnings. If he has advanced more than his just share, the inquiry further arises, from which of his co-owners, and in what proportion, is he entitled to claim the amounts due him? This is simply an adjustment of accounts between part owners. It is the principal thing to be settled by litigation. Here is no independent or original cause of action out of which the necessity for examining the vessel's accounts incidentally arises; but it is a demand, the justice of which directly and primarily depends on, and must be determined by, a settlement of the accounts between the owners. If such a case, independently of any lien, is one of admiralty jurisdiction, then an admiralty court can enforce a lien given by the local laws; but, if the admiralty court has not jurisdiction of the adjustment of accounts of part owners, the defect is not supplied by a statutory lien. "The admiralty has no jurisdiction at all in matters of accounts between part owners," says Story, J. The Orleans, 11 Pet. 182. “A court of admiralty takes cognizance of certain questions between part owners, as to possession and employment of the ship, but will not assume jurisdiction in matters of account between them." Ward v. Thompson, 22 How. 330, 333.

"Now, the admiralty has no direct jurisdiction over matters of account, although they may relate purely to maritime affairs." Davis v. Child, 2 Ware, 78. "The subject-matter is not within the cognizance of the court." The Marengo, 1 Low. 52, 56; Kellum v. Emerson, 2 Curt. 79. "One insurmountable obstacle is that a court of admiralty does not take cognizance of the accounts of part owners, unless incidentally." Hazard v. Howland, 2 Spr. 68, 71. "I therefore hold that the libelants are to be deemed co-owners for this voyage, and, if their claim constitutes a portion of the accounts of the part

*

owners and enters into the same, then this court has no jurisdiction concerning it. It appears, then, that such bills were settled in an accounting of part owners, with which admiralty has nothing to do." Hall v. Hudson, Id. 65, 66.

"The admiralty has, however, no jurisdiction in matters of account between part owners or others, except when taking an account constitutes a mere incident to a maritime cause of action." Ben. Adm. § 263a. "The court has no jurisdiction in matters of account between part owners of a vessel." The Ocean Belle, 6 Ben. 257. "The admiralty courts take no jurisdiction of matters of account, even between part owners." Daily v. Doe, 3 Fed. Rep. 922.

"A proceeding in rem is not a method allowed to be taken to compel an accounting." The Fairplay, Blatchf. & H. 136. Judge Curtis says: "A court of admiralty has no jurisdiction to take an account between part owners." The Larch, 2 Curt. 427.

It is unnecessary to cite further authorities to show that this court has no jurisdiction of accounts between part owners. Numerous cases have been cited in argument, and many others have been examined, in which the power to deal with accounts has been asserted. All except The Charles Hemje (reported in 5 Hughes, 359) were cases in which jurisdiction on the principal subject-matter was undisputed, and in most the disposal of funds remaining in the registry called for an accounting incidentally to the principal matter giving the jurisdiction. In The Charles Hemje, Judge Ware's opinion in the case of The Larch is followed in preference to that of Judge Curtis; but, while adopting the opinion which was overruled, Judge Hughes admits that, in the circuit wherein the decision was rendered, the law as laid down by the circuit court must prevail. Were it not so, my conclusions would not be changed. I have not been content to rest the decision of this cause solely on the authority of The Larch, 2 Curt. 427, because the statute giving to part owners a lien is of a date subsequent to that decision, and calls for a consideration of the question as affected by the statute. Moreover, it was urged at the hearing that Judge Lowell (since circuit judge in this circuit) denied the correctness of that decision. It is true that that learned judge, sitting as district judge in the case of The Tangier, 2 Low. 7, and in the case of The J. A. Brown, Id. 464, criticised the reasoning of Mr. Justice Curtis in that case, but not in respect to the principle now in question. Yet in The Sarah J. Weed, 2 Low. 562, though expressing dissatisfaction with that reasoning, Judge Lowell follows the decision, declaring it binding upon him as district judge. In The Jennie B. Gilkey, 20 Fed. Rep. 161, Judge Lowell, then circuit judge, cites and follows the case of The Larch without comment. Let the entry be made, dismissed for want of jurisdiction, without costs.

THE WILLAMETTE.

NELSON v. THE WILLAMETTE et al.

(District Court, D. Washington, W. D. December 13, 1892.)

1. VENUE IN CIVIL CASES-DIVISIONS OF DISTRICT OF WASHINGTON.

The act fixing the times and places of holding federal courts in the state of Washington (26 St. at Large, p. 45, § 4) provides that actions not of a local nature shall be brought in the division where the defendant resides. Held, that it is the intent of the act that actions of a local nature shall be brought in the division where the res is when the suit is begun. 2. SAME-LIBEL IN REM.

A libel in rem is an action of a local character, within the meaning of the act fixing times and places for holding federal courts in the state of Washington, (26 St. at Large, p. 45, § 4,) and must be brought in the division where the res is when the suit is begun.

3. SAME-CHANGE TO PROPER DIVISION.

Where a libel in rem is brought in the wrong division, the objections thereto being purely formal, and it is probable that the case will be tried on issues of fact, a motion by the respondent to transfer the cause to the right division should be granted.

In Admiralty. Suit in rem against the steamship Willamette to recover damages for a personal injury received in a collision between two vessels. Motion to transfer the cause to the northern division of the district, in which the collision occurred, and in which the vessel was arrested, her home port being in another state. Granted.

A. R. Titlow, for libelant.

Crowley & Sullivan, for intervening libelants.

A. F. Burleigh and J. E. Lilly, for claimant.

HANFORD, District Judge. The Oregon Improvement Company, a corporation of the state of Oregon, has filed its claim as owner of the vessel proceeded against in this case, and filed exceptions to the libel, and also moved to transfer the cause to the northern division of this district. I have considered all the questions raised by said exceptions and motion, and, as there appears to be probability that the case will come to a trial upon questions of fact, it is proper to pass upon the motion now. It is shown that the vessel was found and arrested by the marshal in the northern division, although her home port is Portland, in the state of Oregon; that her officers reside in the northern division, and that the case arises out of a collision be tween said vessel and the passenger steamer Premier, which occurred upon Admiralty inlet, between Seattle and Port Townsend, in the northern division. The libelant and intervening libelants reside in the western division, and for their own convenience have brought the suit in said division. The fourth section of the act to provide for the times and places to hold terms of court in this district (26 St. at Large, 45) reads as follows:

"Sec. 4. That all civil suits, not of a local character, which shall be brought in the district or circuit courts of the United States for the district of Washington, in either of said divisions, against a single defendant, or where all the defendants reside in the same division of said district, shall be brought in the division in which the defendant or defendants reside. * All issues of

fact in a civil cause triable in any of the said courts shall be tried in the division where the defendants, or one of the defendants, reside, unless by consent of both parties the case shall be removed to some other division."

I consider the intention of this law to be that a plaintiff must sue his adversary in the division wherein he resides, or wherein the thing or property proceeded against happens to be situated or found, and to deny to a plaintiff the right to bring either individuals or property to the place where he resides, or where it will best suit his convenience to have the trial. If the libelant may prosecute this case at Tacoma without consent of the defendant, another person having cause of complaint against a vessel on Puget sound, and residing at Spokane or Walla Walla, could with equal propriety cause process to issue from either of said places, and bring his case against her to trial there. My conclusion is that a suit in rem is of a local nature, triable only in the division within which the res happens to be situated at the time of commencing the suit. The motion will therefore be granted.

If I were of the opinion that the exceptions to the libel were sustainable on other than formal grounds, and that the case would probably be terminated without trial upon issues of fact, I would not deem it expedient to grant the motion; but, as at present advised, I consider the libel to be defective for one reason only, and that is, for want of the formal allegation that the vessel, at the time of bringing the suit, was within the jurisdiction of the court. This defect is curable by an amendment. The other points suggested upon the argument of the exceptions may receive further attention after the filing of an amended libel

MARQUARDT et al. v. FRENCH.1

(District Court, S. D. New York. January 5, 1893.)

1. MARITIME CONTRACTS.

A contract to procure insurance is not a maritime contract, enforceable in admiralty.

2. SAME-CONTRACT OF INSURance-RepresENTATIONS.

Respondent, a carrier and forwarder, on receiving certain barrels of cement at New York, delivered to libelants a bill of lading stamped as follows: "Insured Buffalo to Mil. $5,400. Premium paid." A marine loss having occurred in transit, libelants brought this suit, alleging that the stamped bill constituted a contract equivalent to a valued marine policy issued by the respondent, on which they were entitled to recover $5,400, though such sum was beyond their actual loss. Held, that the stamp was not a policy or contract of insurance, but merely a representation or guaranty that insurance in the amount stated had been or would be effected, which interpretation was borne out by the evidence as to the previous negotiations of the parties; that the libel could not be sustained; and that it could not be amended so as to proceed upon such a representation or guaranty, because that was not a maritime contract, but a preliminary contract only, of which an admiralty court has no jurisdiction.

In Admiralty. Libel by Minna F. Marquardt and others against Henry C. French to recover insurance. Decree for respondent.

'Reported by E. G. Benedict, Esq., of the New York bar.

George A. Black, for libelants.

Wing, Shoudy & Putnam, for respondent.

BROWN, District Judge. The respondent for some 10 years past has been engaged in the business of common carrier of merchandise in New York and Buffalo, and as a forwarder from that port to His business is transacted in the name of the Union western ports. Transit Company, having his principal office in Buffalo, and a branch office in this city in charge of Mr. Demarest. On the 19th of November, 1891, Mr. Demarest issued to the libelants a bill of lading reciting the receipt by the Union Transit Company, in apparent good order, of 1,800 barrels of cement, which that company agreed "to forward by its own or other means of transportation," subject to all the conditions therein contained, "to Milwaukee, Wis.," "to be delivered at the dock of the Western Lime and Cement Company," "upon payment of freight at the rates named" in the bill of lading. The bill of lading, when delivered to the libelants, had indorsed upon it the following stamped mark: "Insured, Buffalo to Mil. $5,400 00-100 @ premium paid." In this stamp "Mil." and "5,400" were writing; the other words were printed.

The libel charges that the above-described stamp constituted a contract of insurance between the respondent and the libelants. The libel, referring to the terms of the bill of lading, alleges that the respondent "at the same time and by the same instrument [bill of lading] insured said property from Buffalo to Milwaukee, valued at the agreed value of $5,400." A loss on the lakes having occurred which was treated as total, the libelants further contend that this stamp was equivalent to a valued marine policy, whereby the libelants became entitled to recover the agreed value, $5,400, although that sum considerably exceeds the actual value of the property, and the actual loss which the libelants have sustained. Under the stipulation and deposit of moneys arranged between the parties, I find that the libelants have received all their actual loss. They claim a balance of $985.50 against the respondent personally as an insurer by express contract upon a valued policy for $5,400.

I cannot sustain the interpretation of the stamp, or that of the preceding negotiations between the parties, for which the libelants contend. The respondent was not in the insurance business and never had been. His business was only that of a carrier and forwarder. The bill of lading itself so imported. There was nothing in the circumstances or in the negotiation of the parties that gives any countenance to the idea that Mr. Demarest meant to become an insurer himself, or to charge his principal as an insurer, at the time when the bill of lading was stamped and issued; nor anything to indicate that the libelants then expected either Mr. Demarest or the respondent to be an insurer of the cement. Mr. Demarest evidently had no actual authority to enter into any express contract of insurance to bind the respondent; and I see nothing in the circumstances which could have led the libelants to suppose that he had any such authority.