The removal in this case does not appear to have been ordered by any such officers; but it seems to have been done by the tugs voluntarily, upon the suggestion of persons watching the smoke of the burning ship, and adopted as a thing reasonably proper to be done. It was but an incident in the salvage service undertaken for the City of Atlanta; and it was done in the performance of a reasonable duty so to conduct the salvage operation as not unnecessarily to injure other property. Such an act is not a ground for a salvage claim against other property.

I have not been referred to any case in which one vessel has been charged with payment of salvage for an indirect advantage derived from the rendering of a salvage service to another vessel. The absence of authority is no small evidence that such indirect claims form no part of the law of salvage. If such claims were allowed on the ground that if the burning vessel were left to her fate and not removed, much other shipping might in the end be destroyed, it is plain that such claims of salvage for indirect benefits might be extended indefinitely, and would scarcely admit of any limit. But the policy of the law, which is the very basis for the allowance of salvage awards, does not require any such extension of salvage claims, but on the contrary plainly prohibits it. For it can rarely happen that the vessel to which the salvage service is directly rendered, cannot respond for all such compensation as may be necessary to secure prompt efforts to assist vessels in danger or distress. It is sufficient to allow salvage against her alone. Undoubtedly a vessel in jeopardy from some other dangerous object, may employ tugs in her own behalf to free her from danger by removing it, whether it be a burning vessel or any other dangerous object; and when such removal is clearly made as an independent act in the employment of the other vessel, and for her benefit, a salvage compensation might, perhaps, be allowed. That is not the present case; because, as I have said, the removal of the City of Atlanta was not an independent act, upon the employment or for the benefit of the City of Columbia; but it was a mere incident in the mode of performing the salvage service undertaken for the City of Atlanta, and was a duty incumbent on the salvors of the City of Atlanta as to the mode of performing that salvage service, in case remaining alongside endangered the safety of the City of Columbia.

2. The service rendered to the City of Atlanta was a meritorious one. The small amount saved, however, and the numerous tugs engaged admit of but moderate compensation to any of them. It is clear that the removal of the City of Atlanta from alongside the City of Columbia was deemed expedient and necessary at the time. Both were wooden steamers. Both had considerable light woodwork upon their upper decks; and the wind, though not strong, was from the south, which increased the danger of permitting the City of Atlanta to remain alongside the City of Columbia. In some cases the attempt to put out the fire at the dock has resulted in the destruction of both the ship and the property

on the dock. Notwithstanding, therefore, the judgment expressed after the event by witnesses who are, no doubt, competent judges, that the fire might have been in fact subdued without removing the City of Atlanta, and without setting fire to the City of Columbia, as the removal was done with the evident concurrence of all present, I think the course adopted ought to be approved, as the course deemed most prudent at the time, and as a reasonable duty to the adjacent property. This course, however, increased the difficulty of the tugs in dealing with the City of Atlanta in the currents and ice of the East river, and exposed the salvors in the cold weather to considerable hardship.

I think $4,000 will be a proper aggregate sum to be awarded for the services rendered in this case. There were great differences in the size, value and equipment of the different tugs engaged in the work, and in the length of their respective services, as well as in the time when they arrived on the scene. Some had no pump and were only of service in hauling the City of Atlanta out, and then keeping her in place, as well as they could; though the difficulty of the latter work was much increased by the lack of any concert of action, for which they are themselves to blame. The tugs not supplied with pumps and which did towing work only, must rank lower in merit than those that did pumping; not only because pumping was the immediate means of putting out the fire, but because the labor, exposure and hardship of the pumping work in a cold winter night greatly exceeded that of towing. No diminution, however, is made as against, those pumping tugs that at times did pulling at the request of the superintendent. For those that remained in attendance at the owner's request after the fire was extinguished, an additional allowance is made; and to those that broke hawsers, or suffered other damages, what is believed to be a sufficient allowance therefor is also included. Without entering into further details, I apportion the above amount as follows:

To McQuirey who made fast the lines, $30; to McNeil who has been disabled from having frozen his foot in the service, $200; to the Imperator and the Three Brothers, $350 each; to the Elder, $340; to the Runyon, $310; to the Rawson, the Golden Rule and the Golden Rod, $220 each; to the Wonder and the Rambler, $210 each; to the Agnes, $190; to the Bauer, $170; to the Waite, $140; to the Mascotte, $120; to the Mischief and the Bogart, $110 each; to the Pearl, the Vigilent and the Ceres, $100 each; to the Baltic, $90; to the White, $65; and to the Clough, $45.

Of the sums above awarded to the various tugs, two-thirds will go to the owners, and the other third to the men on board in proportion to their wages. A decree may be entered accordingly.

CALIFORNIA SAFE-DEPOSIT & TRUST CO. v. CHENEY ELECTRIC LIGHT, TELEPHONE & POWER CO. et al.

(District Court, D. Washington, E. D. April 25, 1893.)

No. 160.

1. MORTGAGES-FORECLOSURE-QUESTIONS DETERMINABLE-PARTIES.

In a foreclosure suit only the rights and interests under the mortgage and subsequent to it can be determined, and a third person who claims a paramount and independent title is not a proper party to the suit. 2. SAME-REMOVAL OF CAUSES-REMAND.

In a foreclosure suit brought in a state court a third person was made a party as claiming some interest unknown to complainant. The third person, being a nonresident, voluntarily appeared, and removed the cause to a federal court on the ground of a separable controversy, setting up a claim which was independent of and paramcunt to the mortgage. Held, that such a claim could not be litigated in the foreclosure suit, and, as the first step of the federal court, if it retained the cause, would be to dismiss the removing party, leaving the case to proceed between parties who had not invoked the federal jurisdiction, the cause would be remanded without any action whatever.

In Equity.

On motion to remand to the state court. Granted.

Post & Avery, for plaintiff.

Voorhees & Stevens, for defendants.

HANFORD, District Judge, (orally.) In case No. 160,-the California Safe-Deposit & Trust Company vs. Cheney Electric Light, Telephone & Power Company, Edison General Electric Company, and others,-removed to this court from the superior court of Spokane county, a motion has been made to remand for want of jurisdiction in this court. This suit was brought by the plaintiff to foreclose a mortgage. After the case had been pending some months in the superior court affidavits were filed on behalf of the plaintiff, alleging that the Edison General Electric Company claimed an interest in the mortgaged property, which fact was unknown to the complainant at the time of filing the bill to foreclose the mortgage, and, on a showing, obtained leave of the superior court to file an amended bill bringing in the Edison General Electric Company as a party defendant. The amended bill alleges nothing against the Edison General Electric Company except that it claims an interest in the mortgaged property, the nature of which is unknown to the complainant, but that whatever interest it has is subject to the mortgage. The bill simply prays for a foreclosure of the equity of redemption, and that the property be subjected to sale to pay the debt for which the mortgage was given. No other or particular relief is prayed for against the Edison General Electric Company.

It appears by the record that the Edison General Electric Company made a voluntary appearance in the case, demurred to the amended complaint, and filed a petition and bond to remove the cause to this court, on the ground of a separable controversy between said defendant and plaintiff, they being citizens of different states. v.56F.no.5-17

The petition for removal sets forth what this defendant claims to be the matter constituting the separable controversy, and from that it appears that the Edison General Electric Company claims to own part of the property mortgaged. The company claims nothing under the mortgage, but claims an independent or paramount title to the property. The only controversy the company can have in the case, therefore, is to settle the question of title.

I hold that to be a controversy not within the scope of a foreclosure suit, and therefore it is not a matter that can be litigated in this suit. The correct rule of law, as I understand it, is laid down in section 1589, 11 Jones, Mortg. This writer says:

"Where a party has a right under the mortgage, and also a right prior to it, he is not precluded in respect to the prior right by a judgment of foreclosure, though the terms of it are broad enough to cover both rights. Only the rights and interests under the mortgage and subsequent to it can properly be litigated under a bill of foreclosure. One claiming adversely to the title of the mortgagor cannot be made a party to the suit for the purpose of trying his adverse claim. If he has a claim under the mortgage also, his claim prior to it cannot be divested by the decree. This prior claim is not a subject-matter of litigation in the foreclosure suit, and remains unaffected by it. The decree is final only within the proper scope of the suit, which is to bar interests in the equity of redemption."

Now, if this court should entertain jurisdiction, holding the opinion that I do, I would dismiss the case as to the Edison General Electric Company, the party that brought it to this court, and the case should be remanded, instead of pursuing the inconsistent course of going on and determining rights between other parties which they have not sought to litigate or bring into this court. I think that the Edison General Electric Company, having this claim to the property, the property being now in the hands of a receiver appointed by the superior court, will find its remedy, if at all, by getting leave of the court which appointed the receiver to bring a suit-an independent suit-for the purpose of trying the question of title. For this reason I will grant the motion to remand the cause to the superior court.

ST. LOUIS S. W. RY. CO. et al. v. GRAHAM, Intervener.
(Circuit Court of Appeals, Eighth Circuit. May 15, 1893.)

No. 171.

APPEAL-REVIEW-MATTERS NOT APPARENT ON RECORD.

The circuit court, in a suit for the foreclosure of a railroad mortgage, allowed an intervening claim based on a judgment recovered in a state court, and directed its payment out of the proceeds of sale. The decree recited that it was one of those claims theretofore adjudged to be of a preferential character. This latter adjudication was not appealed from, and, on appeal from the decree allowing such intervening claim, the nature of the demand on which the judgment was recovered was not disclosed by the record. Held, that it must be presumed that the finding of the lower court as to its character was correct, and its decree will be affirmed. Railway Co. v. Stark, 55 Fed. Rep. 758, followed.

Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.

This was an intervention by D. P. Graham in a suit to foreclose a mortgage on the property of the St. Louis, Arkansas & Texas Railroad Company in Arkansas and Missouri. From a decree allowing the intervener's claim, the purchaser under the foreclosure, the St. Louis Southwestern Railway Company, and others, appeal. Affirmed.

J. M. Taylor, J. G. Taylor, and Samuel H. West, for appellants. Sol F. Clark, for appellee.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

THAYER, District Judge. This is an appeal from an order made by the United States circuit court for the eastern district of Arkansas, allowing an intervening claim in a proceeding to foreclose a mortgage on the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri, and directing it to be paid out of the proceeds of the sale of that road. The intervention is founded on a judgment which was recovered by the appellee in the supreme court of Arkansas against the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri on the 22d day of February, 1892, in the sum of $250 and costs. The decree of the circuit court allowing the claim recites that it is one of those claims which the receivers of the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri were ordered and adjudged to pay, by an order made by the circuit court for the eastern district of Arkansas in the foreclosure suit on the 31st day of January, 1890. That order is not contained in the present record, and this proceeding is not an appeal from such order. Furthermore, the record before us does not disclose the nature of the claim on account of which a judgment was recovered in the supreme court of Arkansas. We must accordingly presume that the finding of the lower court was correct, that the intervening claim is one of those claims which it had previously adjudged to be of a preferential character, and had directed to be paid out of the proceeds of the sale of the mortgaged property by a general order made in the foreclosure suit on the 31st day of January, 1890. The case is in all respects identical with the case of Railway Co. v. Stark, 55 Fed. Rep. 758, recently decided by this court, and on the authority of that case the decree appealed from is affirmed.