the libel might also possibly rest on the Queen's lien (if she had one) the respondents asked for and obtained leave to amend in this respect, with privilege to the libelants to take further testimony and be further heard on the subject.

As the conclusion reached is fatal to both the libelants and the insurance companies it is unnecessary to consider other questions discussed.

The libel must be dismissed, and the costs be borne by the libelants and insurance companies equally.

In the suit brought by the insurance companies against the owners of the Argus in personam for the same cause of action, a decree must be entered dismissing the libel with costs.

THE HARRISBURG.

THE FLORA B. v. THE HARRISBURG.

(District Court, E. D. Pennsylvania. February 4, 1896.)

COLLISION ON RIVER-SLOOP WITH STEAMER-FAILURE TO RUN OUT TACK. A sloop which failed to run out her tack, but went about near mid-channel, without making a careful observation of the river to see if she could safely do so, held solely in fault for collision with a steamer whose bows she then attempted to cross; it appearing that the steamer promptly reversed, which was the only thing she could do after the sloop's intention became apparent. The alleged presence of certain mud scows in the path of the sloop held no excuse for not running out her tack, it appearing that she might easily have avoided them.

This was a libel in rem against the steamer Harrisburg to recover damages suffered by the sloop Flora B. in consequence of a collision with the steamer.

S. Morris Waln, for the Flora B.
John G. Lamb, for the Harrisburg.

BUTLER, District Judge. The testimony is conflicting and irreconcilable. A careful examination of it, however, has satisfied me that the sloop was in fault. Without running out her eastward tack she came about westward, not very far from mid channel, without having ascertained whether it was safe to do so. There was no proper excuse for her failure to continue eastward. She could have readily gone around the mud scows alleged to have been in her way, even if they were where she locates them. I doubt whether they were there; the disinterested witnesses who were on the wharf, saw the sloop turn, and realized the danger involved, did not see the scows. But I do not regard the question whether they were there as important; if they were, there was no difficulty in getting by them. Before turning where she did it was her duty to take a careful ob

servation of the river below and westward; which I am satisfied she Coming about under the circumstances, and then attempting to cross the steamer's bows, was careless if not reckless. She evidently proceeded with the notion, which is not uncommon in such vessels, that the steamer was bound to "keep off" under all circumstances. After turning and seeing the steamer she should have changed her course immediately instead of attempting to cross her bows. She could readily have done so and passed astern lower down. I believe her lookout was negligent, but think she saw the steamer after turning, in time to avoid difficulty, but kept her course thinking the steamer could by some maneuver get out of her way, and was bound to do so.

Was the steamer also in fault? Having found the sloop guilty of fault that led directly to the collision, the steamer should not be condemned without clear proof that she was also similarly guilty. As the sloop ran eastward the steamer turned westward, to go under her stern, which was proper; and if the sloop had continued her course the accident could not have happened. When it became evident that the sloop intended to cross her bows, having turned westward, it was too late to avoid the collision by an attempt to turn the steamer eastward. I have no doubt of this; nor have I any doubt that the sloop's intention to cross her bows was discovered as soon as possible. Under the circumstances the only thing the steamer could properly do was to reverse her engines, and thus endeavor to diminish the impending blow. This I think she did. Her witnesses testify positively that she did. The fact that she forced the sloop some distance up stream does not contradict them; they are mistaken in supposing she had about stopped when the collision occurred. To stop such a vessel, even with the engines reversed, requires a greater distance than she had to run to meet the sloop. A decree may be prepared for dismissal of the libel with costs.

THE ETONA.

DOHERR v. THE ETONA.

(Circuit Court of Appeals, Second Circuit. January 8, 1896.)

1 ADMIRALTY-NEGLIGENCE.

No. 50.

The findings and conclusions in The Etona, 64 Fed. 880, in regard to negligence of the ship, approved.

2 SAME-LIABILITY FOR ACTS OF PILOT.

When the cargo of a vessel is damaged in consequence of the negligence of a pilot in a foreign port, the bill of lading providing that claims for damage shall be settled by the law of England, without resort to the courts of any other country, the owner of such cargo cannot recover, here, in any event; for, if the ship could ordinarily be held liable for

such negligence, either the stipulation in the bill of lading is valid, and prevents recovery, or it is invalid, and, the law of the United States governing, the third section of the Harter act protects the ship.

Appeal from the Circuit Court of the United States for the Southern District of New York.

This is an appeal from a decree of the district court, Southern district of New York (64 Fed. 880), dismissing a libel for damages to a cargo of hides shipped at Buenos Ayres in the lower hold, No. 2 hatch, above which was stowed, in the 'tween decks, a quantity of Pernambuco sugar.

Harrington Putnam, for appellant.

J. Parker Kirlin, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM.

We concur with the district judge in the finding that there was no negligence in the stowage of the hides or of the sugar; that the efficient cause of the damage was the stranding on going adrift, which was wholly unexpected, and could not have been anticipated, and was a sea peril, within the exception of the bill of lading. We further concur in the finding that the going adrift was not by reason of any negligence of the ship, but because the local pilot assigned her a position somewhat outside of the ordinary anchorage ground, and where the bottom was bad for holding. The conclusions of the district judge upon these findings are correct. Either the negligence of the local pilot is negligence for which the ship is not ordinarily responsible, or, if the ship could ordinarily be held for the consequences of such pilot's negligence, then either the stipulation in the bill of lading adopting the law of England is valid, and prevents recovery, or it is invalid, and our own law, in the absence of any reference to the law of Brazil, remains as the only law of the case; in which event the third section of the Harter act protects the ship against libelant's claim, since there has been no negligence, fault, or failure in loading or stowage.

The decree of the district court is affirmed, with costs.

NATIONAL ACC. SOC. v. SPIRO.

(Circuit Court of Appeals, Sixth Circuit. January 7, 1896.)

No. 260.

REMOVAL OF CAUSES-APPEARANCE-EFFECT OF PETITION TO REMOVE.

An action was commenced against a New York corporation, in a Tennessee state court, by service on one M., "as agent and adjuster" for such corporation. The defendant filed its petition for the removal of the cause to the federal court, without in any way limiting the effect of its appearance in so doing, and afterwards filed a plea in abatement on the ground that M. was not its agent. Held, that the question whether the defendant, by filing its petition for removal, unaccompanied by a plea in abatement, and without restricting the purpose of its appearance, waived the objection to the jurisdiction of the court for want of service, should be certified to the supreme court.

In Error to the Circuit Court of the United States for the Eastern District of Tennessee.

Cooper & Davis (McBurney & McBurney, of counsel), for plaintiff in error.

Ingersoll & Peyton, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

PER CURIAM.

This is an action upon a policy of accident insurance, begun in the circuit court of the state of Tennessee for the county of Knox, by the defendant in error, widow of Herman Spiro, the assured. The plaintiff in error is a corporation organized under the laws of the state of New York, with its principal office in the state of New York. The writ of summons was served upon one H. D. McBurney, "as agent and adjuster" for the said corporation.

The plaintiff in error seasonably filed its petition for a removal of said suit to the circuit court of the United States, upon the ground that the controversy involved a sum in excess of $2,000, and was wholly between citizens of different states. This petition did not specify or restrict the purpose of the defendant's appearance in the state court to the sole purpose of obtaining a removal of the cause into the federal court, and no plea to the jurisdiction of the court had been theretoforé filed by it. After the removal had been perfected, the plaintiff in error filed a plea in abatement, properly verified, in these words:

"The defendant for plea says: The original writ in this cause was not served on the defendant or any of its agents, but that it was served April 17, 1894, on H. D. McBurney, who was not at the time of said service of said writ, nor has the said McBurney been, an agent of the said defendant on him an agent of the defendant at any time either before or since said service on him; and that there was no agent of the defendant of any kind or character in Knox county, Tennessee, on the said 17th day of April, 1894, nor has there been any such agent of the defendant in said county at any time since that date. The defendant further says that no legal process has been served upon it in this cause; therefore it is not bound to appear."

v.71F.no.7-57

To this, the plaintiff (now defendant in error) replied as follows: "And plaintiff, for replication to defendant's plea in abatement, says H. D. McBurney, on whom the writ of summons in this case was served on 17th of April, 1894, was at that time an agent of the defendant; and this she is ready to verify. Wherefore she prays judgment," etc.

The issue thus formed was duly submitted to a jury, who found for the plaintiff, and assessed her damages at $5,055.

In the determination of the questions arising upon errors assigned, it becomes necessary to determine and declare the effect of the ap pearance in the state court, and the filing there of the petition for a removal above referred to. This court, in the case of Railway v. Brow, 13 C. C. A. 222, 65 Fed. 941, held that the filing of a petition for removal of a cause from a state court to the circuit court of the United States, without then objecting to the jurisdiction of the court over the person of the defendant, or in any way restricting the appearance as alone for the purpose of removing the cause, was a general appearance, and that it was too late, after such removal, to urge, in the federal court, that that court had no jurisdiction over the defendant by virtue of the process issued. Subsequently the supreme court granted a writ of certiorari removing that suit into the supreme court; and the case is now pending in the supreme court, and undecided. After the decision of the case of Railway v. Brow, the supreme court, in Geldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, held that where a petition for removal is filed in the state court for the sole purpose of presenting a petition for removal, and that purpose is specifically stated, and the appearance restricted, the defendant does not thereby enter a general appearance or waive the right to object to the jurisdiction of the court for want of sufficient service of summons. In the same case the court reserved the question as to the effect of a petition in general terms for removal, "without specifying and restricting the purpose of the defendant's appearance in the state court," as a waiver of objection to the jurisdiction of the court over the person of the defendant.

In view of this state of the law, this court is in doubt as to how it should decide the point thus reserved, and therefore certifies to the supreme court this question: Does a defendant, by filing a petition in a state court for removal of the cause to the United States court, in general terms, unaccompanied by a plea in abatement, and without specifying or restricting the purpose of his appearance, thereby waive objection to the jurisdiction of the court for want of sufficient service of the summons?

INJUNCTION INEQUITABLE CONTRACT-BANKS AND BANKING-CORPORATIONS. A bill which seeks to restrain the sale by a bank of property pledged as collateral security to a note discounted by it, on the ground that the president of the bank secretly agreed that he would see to the payment