Div. 121; S. C. 5 Prob. Div. 54; Roff v. Wass, 2 Sawy. 389; The J. C. Potter, 3 Mar. Law Cas. 506. As observed by Lord KINGSDOWN, in delivering the opinion of the privy council in the case of The Minnehaha, Lush. 335, 347: "She may be prevented from fulfilling her contract by a vis major, by accidents which were not contemplated, and which may render the fulfillment of her contract impossible, and in such case, by the general rule of law, she is relieved from her obligations. But she does not become relieved from her obligations because unforeseen difficulties occur in the completion of her task; because the performance of the task is interrupted, or cannot be completed in the mode in which it was originally intended, as by the breaking of the ship's hawser. But if, in the discharge of this task, by sudden violence of the wind or waves, or other accidents, the ship in tow is placed in danger, and the towing vessel incurs risks and performs duties which are not within the scope of her original engagement, she is entitled to additional remuneration for the additional services if she be saved, and may claim as a salvor, instead of being restricted to the sum stipulated to be paid for mere towage." The rule is the same with respect to pilots. The Eolus, 1 Asp. Mar. Law Cas. 516, and note; The Hope, (Hobart v. Drogan,) 10 Pet. 108; Akerblom v. Price, 4 Asp. Mar. Law Cas. 441; The Wave, Blatchf. & H. 235. It is not claimed that the distinctions here taken are decisive against the allowance of a general average contribution in cases like these. They do, however, show that the whole law upon this subject. has arisen out of the anomalous relations between the ship and cargorelations such as do not exist between a tug and tow. In my opinion, the law of general average is confined to those cases wherein a voluntary sacrifice is made of some portion of the ship or cargo for the benefit of the residue, and that it has no application to a contract of towage. A decree will be entered dismissing the libels, with costs. WHITTENTON MANUF'G Co. v. MEMPHIS & OHIO RIVER PACKET Co. and others. [Circuit Court, W. D. Tennessee. November 26, 1883.) 1. REMOVAL OF CAUSES REPLEADING CONSTITUTIONAL LAW-TRIAL BY JURY. Where a suit at common law has been removed from a state court in which it has been conducted under the forms of procedure belonging to a court of equity, the constitution and laws of the United States require that there must be a repleading to conform to the practice of the federal court as a court of law. 2. SAME-REMOVAL ACTS CONSTRUED-EFFECT OF THE REMOVED PLEADINGS. This repleading may require more than one suit, and on both sides of the docket, but this is unavoidable in a jurisdiction keeping up as persistently as the federal laws do the distinctions between law and equity; and the force and effect of the proceedings in the state court are preserved by moulding them to suit the requirements of the case in the process of distribution between the two jurisdictions. 3. SAME-UNIFORMITY IN THE FEDERAL PRACTICE. It is only by this construction of the removal acts that the distinctions between law and equity jurisdiction can be observed in practice, and that uniformity secured which it is plainly their intention to enforce. There cannot be one practice for causes removed from the state courts and another for suits originally commenced in the federal court. 4. SAME-SECTION 639, REV. ST.-ACT OF MARCH 3, 1875-PARTIAL REPEAL. The last clause of section 639, Rev. St., taken from the act of July 27, 1866, enacting that "the copies of the pleadings shall have the same force and effect in every respect and for every purpose as the original pleadings would have had by the laws and practice of such state if the cause had remained in the state court," has been repealed by the act of March 3, 1875. 5. SAME-PLEADING UNDER THE TENNESSEE CODE. Although the Code of Tennessee does not permit an action to fail for any defect of form in pleading and allows a suit upon the facts of the case," it does not authorize a suit at common law to be prosecuted in a court of law under the form of pleadings belonging to a court of equity. Motion to Replead. The plaintiff, under an act of the Tennessee legislature of March 23, 1877, c. 47, which enacts that the jurisdiction of all civil causes of action now triable in the circuit court, except for injury to person, property, or character, involving unliquidating damages, is hereby conferred upon the chancery court, which shall have and exercise concurrent jurisdiction thereof along with the circuit court, filed its bill in the chancery court of Shelby county to recover damages from the defendants for an alleged breach of contract by failure to deliver to the plaintiff in the same good order in which they were received for transportation about 1,000 bales of cotton. The bill, which is in the usual form of a bill in equity addressed to the chancellor, proceeds, in about 27 pages of manuscript, to relate in detail the purchase by plaintiff of the several lots of cotton; that these lots were, respectively, in the warehouse of the vendors, where they were selected, examined, sampled, etc., and found to be in good condition and shipping order; that, after the purchases, they were sent either to the Mammoth Cotton Compress Company or to the Union Cotton Comv.19,no.5-18 press Company to be compressed and prepared for shipment according to a contract between the plaintiff and said companies, at an agreed price; that after compression the bales were delivered to the defendant packet company for transportation to the plaintiff's mills in Massachusetts; that the defendant packet company executed bills of lading, which are set out by exhibits, etc. The bill then states that the cotton was shipped to plaintiff's mills, and proceeds with particularity to state, on information and belief, the dates, names of the steamers of the packet company, the several lots, and the compress company from which received by the steamers, and other matters connected with the shipments; that the cotton reached plaintiff, but that "when so delivered the said cotton was not in good order and condition," describing the condition as received, etc. The bill "charges," on information and belief, that "the cotton was carelessly and negligently exposed to the weather, without adequate protection or care by the said Mammoth and Union compress companies and the packet company, and that the damage and injury done to it were produced by, or the necessary result of, the negligence and want of care of said companies respectively, and while they so had custody," etc. It then alleges that plaintiff notified the railroad company of its claim for damages, and subsequently notified the packet company and the compress companies, all refusing compensation, and avers that the whole damage done by the defendant companies amounts to $5,000, and that the three defendants are jointly and severally liable for the same. The bill further states that the receipts taken by the plaintiff from the compress companies respectively were delivered to the packet company, and that the plaintiff believes they are now under the control of defendants, or one of them, and prays "they be required to produce the same for the purposes of this suit and to be used on the hearing," etc. Another allegation of the bill is that, since the transactions mentioned, the two compress companies have become merged into a new compress company; that plaintiff had endeavored to procure information necessary to enable him to determine when, and how, and by whom the damages to the cotton was done, by addressing a letter to the company, etc., and that no response had been made, the letter being exhibited and filed as part of the bill. The bill also charges that the Merchants' Compress & Storage Company, in the place and stead of the other two compress companies, is, with the packet company, justly indebted to the plaintiff, "by reason of the damage done to the cotton aforesaid, in the sum of $5,000 and interest." The bill names the agent of defendant or its superintendent, and prays process to make the packet company and the compress company defendants; that they be required to answer; that the amount of the damage be ascertained and fixed, and for the proper judgment or judgments and execution, and that, if necessary, attachment issue against the non-resident Ohio corporation,-the packet company,and for general relief. Subpoena issued, and was served, but no attachment. The compress and storage company appeared and demurred, assigning three grounds of demurrer, and the packet company also appeared and filed a separate demurrer on four grounds. Without disposing of these demurrers the plaintiff obtained leave to amend the bill, and by an amended bill, in about six additional pages of manuscript, states substantially that it is advised that the cotton was in the custody of the compress companies, as the agents of the packet company, from the time the bills of lading were signed until the same was delivered to the respective steamboats. The amended bill prays the same relief as the original bill. After the amended bill was filed the plaintiff removed the case to this court, when the transcript was filed and docketed on the law side. The defendants moved that the plaintiff be required to replead according to the practice of the courts in suits at law. H. C. Warinner and Metcalf & Walker, for the motion. HAMMOND, J. In whatever form the subject has presented itself,— whether as a matter of jurisdiction, pleading, or practice, as to methods of relief, defenses, review, or what not,the supreme and inferior federal courts have, with inexorable firmness, insisted upon preserving the essential distinctions between law and equity by administering them separately, as required by the constitution and laws of the United States. The cases are far too numerous for citation here, but will be gathered in a foot-note for consultation in support of this opinion. They commence with the organization of the courts, and are to be found in almost every volume of the reported decisions. It is a distinction that inheres in the system by virtue of constitutional commands, and it will be found upon close observation that the federal constitution has protected the right of trial by jury in a manner that imposes restrictions upon legislative power more effectual, perhaps, than those found in many of the state constitutions. It necessarily results from the requirement that, in all controversies. of legal cognizance, there shall be preserved a right of trial by jury, and that no fact so tried shall be re-examined in any court otherwise than according to the rules of the common law, that the original trial shall be likewise according to those rules in all essential and substantial particulars. Merely taking the verdict of 12 men, no matter how, is not, in the sense of our federal constitution, a trial by jury; and it is impracticable, as well as impossible, to conduct the original trial according to rules unknown to the common law, and in subversion of them, and then, on re-examination by writ of error in an appellate jurisdiction, or, it may be, on motion for new trial, or otherwise, in the tribunal of first instance, to obey this mandate of the constitution, and conduct those proceedings "according to the rules of the common law." Const. U. S. Amend. 7. The whole proceeding, from beginning to end, must be, ex necessitate rei, a common-law proceeding; not necessarily according to the precise forms of the common law,-reformation in procedure being open to legislation,—but always there must be a trial substantially according to the course of the common law. Now, this consideration alone has convinced me, aside from all others, that when parties bring their "suits at common law" from a state court of equity, where, by state legislation, they have been permitted to conduct them under the forms of procedure known to those courts in ancient times, into this court, they must, in the nature of the case, by repleading, convert their "bills," exhibits, disclaimers, pro confessos, answers, cross-bills, pleas, replications, petitions, affidavits, jurats, and the like into declarations and pleas according to the forms for trials of suits at common law prevailing, not only in this court, but as well in the law courts of the state of Tennessee. Even in the state court of equity, from which this suit comes, when a jury is demanded, as it may be, the trial is not on the bill, answer, etc., but, by statute, the parties are required to make up their issues in a separate writing for the jury, which is, in effect, what we require them to do here by repleading. Manifestly, that method of sifting out the issues to be tried is not open to this court, and it can only be accomplished by repleading. It matters not that this may result in two or more separate suits, with some at law and some in equity. This comes from state legislation allowing the parties to litigate their several controversies in one suit, a method forbidden to this court, which must administer law and equity separately. If the parties deem this an advantage they should remain in the state court where it can be done. Nor is it practicable to have a different rule for a suit which is removed when the "bill" only has been filed, from one which is brought here at some later stage. It would be a hybrid proceeding, producing confusion, if not disadvantage, to the defendant, to allow the plaintiff to use an elaborate and voluminous "bill" as the vehicle for his case and confine the defendant to the simple form of a plea at law. as Acting on these views some years ago, in the case of Levy v. Amer. Cent. Ins. Co., (not reported,) it was ruled by this court that there must be, in such cases, a repleading when the suit is removed; and the practice has been so until challenged in this case. In that case, in this, the state chancery court had acquired jurisdiction under the act of March 23, 1877, c. 47, giving the equity courts jurisdiction concurrently with courts of law of all civil causes not founded in tort. Acts 1877, p. 119. And, it may be remarked, that in addition to this source of jurisdiction over purely common-law suits, the state chancery courts have, for a very long time, under our attachment |