Circuit Court can effect the question of juris- | $2,000, the claim is too indefinite to give this court The interest not being specially diction. The decree of the District Court jurisdiction. claimed in the pleading, cannot be considered on which dismissed the libel, having been affirmed this question. by the Circuit Court we must look to the claim of the appellant in his libel whether it exceeds the sum of $2,000. The balance of the account claimed, only amounts to the sum of $1,691.86. But it is insisted that if the interest on this sum be computed, up to the time of the trial in the Circuit Court, the sum would exceed the amount required to give jurisdiction. Where the claim is founded on dollars and cents, whether it be a libel, a bill in chancery, or an action at law, the damages must appear to give jurisdiction on the face of the pleading on which the claim is made. No computation of interest will be made to give jurisdiction, unless it be specially claimed in the libel. If not intended to be included in the claim of damages, it should be specially stated. This would certainly be the case in an action at law, and no reason is perceived why the rule should be relaxed in a case of libel. Under the 24th admiralty rule of this court, it is suggested, the libel may be amended at any time as of course, on application to the court. And if this be necessary, the counsel now moves to amend the libel by inserting "together with the interest to the time of the final decree in this court or any appellate court." It has not been the practice of this court to allow amendments, except by the consent of parties; though, in the case of Kennedy v. Ga. State Bank, 8 How. 610, this court say: "there is nothing in the nature of an appellate jurisdiction, proceeding according to the common law, which forbids the granting of amendments, etc., but the practice has been to remand the cause to the lower court for amendment. 19] If amendments be allowed so as to give jurisdiction to this court, where there was no jurisdiction when the trial was had and the appeal taken, parties would be taken by surprise, and litigation would be encouraged. The plaintiff, under such circumstances, would never fail to sustain the jurisdiction of this court, on his appeal. On the ground that the matter in dispute does not appear on the face of the libel to exceed $2,000, the appeal is dismissed. Dismissed for want of jurisdiction. Argued Dec. 22, 1854. Decided Jan. 3, 1855. A ed States for the Southern District of New York. PPEAL from the Circuit Court of the Unit Motion to dismiss for want of jurisdiction. Messrs. Benedict and Brauey for appellant. Mr. Cutting for appellee. Mr. Justice McLean delivered the opinion of the court: This is an appeal from the Circuit Court of the United States for the Southern District of New York, in admiralty. A motion is made by defendant's counsel to dismiss the appeal for want of jurisdiction. *In the libel, the shipment of a box of [*22 merchandise which was not delivered to the consignee, etc., is alleged, and that the libelant is entitled to recover of said vessel the damages by him sustained, which amount to the sum of $1,800 and upwards, etc. The District Court dismissed the libel, from which decision an appeal was taken to the Circuit Court, and that court affirmed the decision of the District Court. From this last decision an appeal has been taken to this court. On the part of the appellant it is stated, that the claim was for $1,800 and upwards, besides the interest; that, on the hearing, the libelant claimed the said principal and interest, amounting to $2,250, and that he was entitled to recover on his proofs and allegations that sum. That this was the claim at the time of the appeal, and that another year's interest has since accrued, and it is contended that the sum sworn to, being $1,800 and upwards, was intended to cover the accruing interest. The right of appeal from the Circuit to the Supreme Court is given "where the matter in dispute exceeds the sum or value of $2,000, The defendant can apexclusive of costs." peal where the judgment or decree against him exceeds the sum or value of $2,000; but an appeal may be taken by the plaintiff where his claim of damages, in the declaration or libel, exceeds the above sum, or where the value of the thing claimed exceeds it, as this is held to be the matter in dispute. The appellant in this case claims in his libel, which is sworn to, $1,800 and upwards. The words "and upwards" it is said were intended to embrace the interest, and that if this be calculated from the time of filing the libel up to the time of the trial, the sum would exceed $2,000. The interest in an action of this kind, if taken into view, is considered as a part of the damages, being merged in that claim, and is not estimated as a distinct item. The claim of Jurisdiction-amount necessary-interest, when more than $1,800 is too indefinite to give juris not to be included in. Where the amount claimed in a libel is "eighteen hundred dollars and upwards," although these terms were intended to embrace the interest, which to the time of trial would increase the sum to over NOTE.-Jurisdiction of U. S. Supreme Court dependent on amount-see note, 7 L. ed. U. S. 592. diction under the Act of Congress; and the interest not being specially claimed, for the reason stated, cannot be computed. The appeal is therefore dismissed for want of jurisdiction. Gordon v. Ogden, Pet. 34; Scott v. Lunt's Administrator, 6 Pet. 349. Cause dismissed. A PPEAL from the Circuit Court of the United States for the District of Kentucky. Wickliffe filed his bill in chancery in the Circuit Court of the United States for the District of Kentucky against Thomas Deye Owings, to be quieted in the possession and right to certain tracts and parcels of land of which he alleges he is seised in fee and holds in actual possession. The relief is sought under general principles of equity, but more particularly under the Connecticut Statute of 1796, which gives the owner of the legal title who is in possession, a right to quiet his title against claimants. 1 Morehead & B. Ky. Stat. 294. The answer denies the jurisdiction of the court, on the ground that the defendant is a citizen of Connecticut; and alleges that if Wickliffe has any legal title, he obtained it by fraud; and also sets forth that the defendant had filed a bill in chancery, to be let in to redeem in the Circuit Court of the County of Bath, State of Kentucky, before the institution of this suit, which he informally alleges as ground to abate this suit. The court below dismissed the bill. Complainant appealed to this court. A further statement of the case appears in the opinion of the court. Messrs. C. A. Wickliffe and Preston, for appellant, contended: That the court has jurisdiction, because the defendant is a resident of Texas; that the suit of Wickliffe was first pending; that the charge of fraud is not sustained by the proof; that the compromise with Bascom will be favored in equity. Taylor v. Patrick, 1 Bibb, 168; Leggett's Heirs v. Ashley, 5 Littell, 178; Fisher v. May, 2 Bibb, 448; Mills v. Lee, 6 Monroe, 98; Bates v. Todd, 4 Littell, 177; see, also, Elmendorf v. Taylor, 10 Wheat. 152; Fenwick v. Macey, 1 Dana, 279. The legal title to the lands in controversy, being in Wickliffe, coupled with the possession, he should have his title quieted. Mr. A. H. Lawrence, for appellees: The bill in this case was filed in the Circuit Court of the United States for the District of Kentucky against Thomas Deye Owings, to be quieted in the possession and right to sundry tracts and parcels of land enumerated in the bill, of which he alleges he is seised in fee, and holds in actual possession. The bill further alleges that the defendant Owings had set up title and claim to the land in question without any right in him whatever, and had thus injured the title of the complainant. The relief sought is under general principles of equity, but more particularly under the Kentucky Statute of 1796, which gives the owner of the legal estate who is in possession, the right to quiet his title against claimants. 1 Morehead & Brown, Ky. Stats. 294. To this bill the defendant has filed an answer, denying the jurisdiction of the court, and denying that he was a citizen of the State of Texas, but stating that he was residing in Kentucky at the time this suit was brought. The answer admits the possession of Wickliffe, and does not directly traverse the allegation that Wickliffe is vested with the legal title, but alleges that if said Wickliffe has any legal title, he obtained it by fraud. The answer also sets forth that he, the defendant Owings, had filed a bill in chancery, to be let in to redeem in the Circuit Court of the County of Bath, State of Kentucky, before the institution of this suit, which he alleges as ground to abate the suit. The court below dismissed the bill, whereupon the complainant took an appeal to this court. The case is further stated in the opinion of of the court. Mr. Justice Campbell delivered the opinion of the court: The plaintiff filed his bill in the Circuit Court of the United States for Ken- [*48 tucky, against Thomas Deye Owings, by which he assumes to be the owner, and in the lawful possession, of a number of tracts of land, lying in different counties of the State, which had at one time been the property of the defendant, but of which he had been legally divested, and notwithstanding claims, by the instigation and advice of other persons, to the prejudice and vexation of the plaintiff. The object of the bill is to establish the title and to quiet the possession of the plaintiff. The facts disclosed by the record are that in the years 1817 and 1818, the defendant was possessed of a very large estate in lands, but was indebted beyond his means of payment. During those years two of his creditors (Luke Tiernan and Samuel Smyth) respectively recovered, in the Circuit Court of the United States for Kentucky, judgments for the aggregate sum of $25,000 and upwards; the one by default, the other by confession. Immediately thereafter, the defendant adopted a system of legal proceedings, to postpone the day of payment of those judgments, which terminated in the augmentation of the debt, and the introduction of other persons, in the character of sureties, to share in the entanglements of the debtor. By the interposition of injunctions, replevin, and stay bonds, and for the want of bidders at execution sales, the defendant withstood his creditors until 1824. In November, 1824, Tiernan purchased a number of the tracts in dispute, and others in 1827 and 1834, under the executions, and for which he has the deeds of the Marshal. In 1820, Samuel Smyth assigned his judg ment to Ellicott and Meredith, in trust for -creditors, and these persons, between 1826 and 1829, purchased nearly, if not all, of the tracts for which Tiernan had acquired a title. In 1824, before any of these sales, Owings had conveyed the lands to the sureties whom he had involved upon the bonds before referred to in these and other cases, for their indemnity, and delivered to them the possession of the property, and ceased to have any control of it. He gave to them authority to "sell, dispose of, and convey any of the estate, whenever it might be necessary for their protection," and in such cases as a majority of them might consider as most beneficial to all concerned, in case their principal was in default. Tiernan and Meredith and Ellicott, in 1827, commenced suits for various parcels of the lands they had purchased at the marshal's sales in the Circuit Court of the United States, and recovered judgments. The questions involved in the issues, appear to be the regularity of the sales by which they acquired title. In 1829, after a portion of these trials, the sureties and assignees of Owings executed a deed to Ellicott and Meredith, for the tracts of land described in 49*] *the bill, upon a "general compromise," with them, by which the debt to Samuel Smyth, with the various bonds taken to secure it, were surrendered to be canceled. The record shows that Owings was advised of this settlement, and expressed approbation of it. Some time after this settlement with the assignees of Owings, an arrangement was concluded between Tiernan, Ellicott and Meredith, and the Bank of the United States, by which the bank agreed to reimburse Tiernan for his debt and advances, and to cancel an indebtedness of Smyth, and to take the title to the property they had acquired by these proceedings. This arrangement was carried into effect by a suit in the Circuit Court of the United States, in which a sale was ordered, at which in 1834 and 1835, the bank became the purchaser. In 1836, the bank sold its title to the plaintiff in this suit. In order to free the title from any imperfections, a bill was filed in the Circuit Court of Bath County, Kentucky; and in that suit, the titles of Tiernan, Ellicott and Meredith, and the bank, were, in 1848, conveyed to him. bill. This settlement was executed by the delivery of the proper evidences of title. Those in the name of Owings were executed by Bascom as his attorney in fact. The land conveyed to Mrs. Bascom has remained in the family till this time, and in 1847 was divided among the children of Owings, in a suit to which he was a party. The validity of the conveyance of Wickliffe to her, was asserted in that suit, and admitted in the decree of the court, as the basis upon which it was founded. Owings in 1836 or 1837, left the United States for Texas; during the interval, from 1837 to 1849, the plaintiff was in the open possession of the property. Before the departure of Owings, the plaintiff had offered to reconvey to him the *whole of his purchases, [*50 upon an extended credit and a reduced rate of interest, for the consideration of the debts and costs they represented; which proposal Owings acknowledged his inability to accept, and fulfil the obligations he would thus incur. In 1849, he was induced to return to the United States, and to renew the controversy which had been so long pending, by the assertion of pretensions hostile to the title of the plaintiff, and prejudicial to his useful and peaceful enjoyment. The evidence shows that the lands are in the possession of the plaintiff, occupied by a numerous body of tenantry; that sales have been obstructed and rents diminished by the assertion of these claims. The right of the plaintiff to relief is rested upon the general principles of equity, as well as a statute of Kentucky, to the effect "that any person having both the legal title to, and the possession of land, may institute a suit against any other person setting up a claim thereto, and if the complainant shall establish his title the defendant shall be decreed to release his claim." 1 Bro. & More, Stat. 429. The jurisdiction of a court of chancery to grant perpetual injunctions for quieting inheritances, after the right and matter in question has been fairly settled by concurring verdicts, has been long established; and in addition to this general ground for equitable interference, this case presents a strong claim for the interposition of the court, arising from the settlement between Bascom, as the attorney in fact In the course of these proceedings, a number of the defendant, and the plaintiff. The conof confirmatory deeds were taken from pur-sideration of that settlement has been enjoyed chasers of portions of the property at the mar- for many years, by the family of Owings. We shal's sales, that it is unimportant to describe. conclude that this arrangement, embracing the To appreciate fully the case of the plaintiff, it fact that a confirmatory deed to the plaintiff is proper to notice a transaction between him had been executed in his name, under the letter and Mr. Bascom, the son-in-law and attorney of attorney to Bascom, was communicated to in fact of Owings, in 1837. The plaintiff, after him, and that it received his approbation. If the acquisition of his titles from the bank, insti- additional assurances were, therefore, required tuted suits for the recovery of the family resi- to perfect the title of the plaintiff, and to maindence and other lands of the defendant, in the tain his quiet enjoyment, it is the duty of the courts of Kentucky. At the trial term of these court to exact them. suits, a proposal for an adjustment was submitted to the plaintiff, by Mr. Bascom (under the advice of counsel), which was accepted by him. He agreed to convey to Mrs. Bascom the family residence and other lots, a balance due on the judgment of Tiernan, to release the claim for mesne profits, and to dismiss the suits pending, each party to pay costs. Owings and Bascom were to confirm the title acquired by the plaintiff, to the lands described in the But if a question might arise upon the facts of this case, upon this branch of it, there will be none when we connect it with the statute of Kentucky: "When the nature of our conflicting titles," says the Supreme Court of that State, "whether derived from the laws of Virginia or of this State, are considered, there is an apparent necessity of permitting the holder of the legal estate to call his adversary to the test when it cannot be otherwise reached. This Act ought to be liberally expounded as a remedial stat ute." Cates v. Loftus, 4 Mon. 439. And in accordance with this view, that court decreed a release to one having the legal title and possession from one who "pretended 51*] *a claim under a vague and void entry without equity." 1 Mon. 97. And in another case, where the party in possession with title averred "that the defendants pretended to have a claim upon it, and thereby disparaged his title and obstructed him in the full enjoyment of his property." Armitage v. Wickliffe, 12 B. Mon. 488. This statute is too important a portion of the law of property in Kentucky, to be disregarded in the exercise of the equitable powers of the courts of the United States in that State; and without affirming that it can be so fully applied under the constitution of those courts as by the State tribunals, we are satisfied that its protection may be properly invoked in cases like the present. Clark v. Smith, 13 Pet. 195. The statement of the plaintiff's title shows that the lands described in his bill were sold as the property of the defendant, by a public officer, with legal process, issued upon valid judgments, and that the title of the purchasers have vested in him; that this title has been submitted to a court of law, and maintained in a succession of trials; that besides, the sureties who were bound for these judgments, and to whom the lands were delivered by the defendants for their indemnity, with powers to use them for that purpose, have transferred them, to relieve them selves and their principal, to the grantors of the plaintiff; that, in addition, the son-in-law, agent, and attorney of the defendant, to preserve a portion of his estate for his family, has confirmed in his name the title of the plaintiff, as we are bound to believe, with the knowledge and acquiescence of his principal, and that family still retains the consideration of this deed; finally, that the plaintiff, and those whose title he has, has been in possession since 1824. The defendant resists the suit of the plaintiff, for relief. 1st. By a denial, in his answer, of the averment that he is a citizen of Texas, and consequently the jurisdiction of the court. 2d. By the plea that before this suit was commenced he had instituted one in the Circuit Court of Bath, Kentucky, contesting the plaintiff's title and provoking a full investigation into its validity, and that he could not be restrained from its prosecution there. 3d. That the sales by the marshal were valid, and that the conveyance executed by Bascom in his name to the plaintiff is void, for misrepresentation, fraud, and the want of consideration. The doctrine of this court is settled, that when the jurisdiction of the circuit court appears, by proper averments, on the record, the defendant can only impugn it in a special plea. The 39th rule of practice for courts of equity in the United States, adopted by this court, excludes "matters of abatement, objections to the character of parties and to matters of form," 52*] from the answer, *and confines its operation to "matters in bar, or to the merits of the bill." It is proper to say, that if the fact of citizenship was open to inquiry, the evidence sustains the allegation of the bill. 2. Whether we consider the commencement of the suit as dependent upon the filing of the bill with the clerk of the court, or the issue, service, or return of process upon it, there is no sanction in the evidence for the plea by the defendant of a prior suit pending in the Circuit Court of Bath County. The plaintiff's bill was filed and process issued before that of the defendant was entered, and the process from the court of the United States was executed more than a year before the service of a subpoena to answer, on the plaintiff. Nor are the imputations of fraud, oppression, and injustice, upon the conduct of the plaintiff, nor the charges that he acquired his titles by corrupt and champertous contracts, better supported. No evidence has been taken which authorizes the crimination of the plaintiff by such allegations, in any part of the complicated and involved controversies which he seeks by this bill to close. Our conclusion is, that the plaintiff is entitled to the relief he asks for, and that the decree of the Circuit Court must be reversed, and a decree entered here conformable to this opinion. Decree reversed. And this court, proceeding to render such decree as the said Circuit Court ought to have rendered, doth order, adjudge and decree, that the complainant has shown a legal title to all those tracts or parcels of land which are described and set forth in the two deeds in the record, executed by Owings and Bascom, dated 6th April, 1837, and marked No. 54, and by A. Trombo, Commissioner, dated 25th day of September, 1848, and marked No. 58, in both of which the said complainant is the grantee, but excepting from this decree the lands which were conveyed to Mary N. Bascom, by the said complainant, the 6th April, 1837, and as to which this decree has no application. And it is further ordered, adjudged, and decreed by this court, that the said complainant has shown sufficient matter of equity to entitle him to a release, by Thomas D. Owings, or his heirs at law or devisees, or other legal representatives, of all their claim, and to be quieted in the possession and enjoyment of the said parcels of land. *And it is further ordered, adjudged [*53 and decreed, that the said complainant do not recover his costs in this cause in this court, of and from the said defendant. It is therefore further ordered, adjudged and decreed by this court, that this cause be, and the same is hereby remanded to the said Circuit Court, with instructions to cause an ap proximate deed of release and quitclaim to be prepared and executed by the said defendant, or his heirs at law or devisees, or other legal representatives of their rights, as aforesaid; and also that the said court issue an injunction to them commanding their agents and attorneys, aiders and abettors, to refrain perpetually from any molestation or disturbance of the right and possession of the said complainant, under any title of the said Thomas D. Owings, and that the said Circuit Court do execute and carry into effect all the provisions of the afore said decree of this court. ISRAEL W. RAYMOND, Owner and Claimant of the Cargo of the ship Orphan, consisting of 844 tons of coal, App't, V. WILLIAM TYSON, Libelant. (See S. C. 17 How. 53-71.) Charter-party-construction of-lien for freight, when waived. A charter-party should be construed liberally, agreeably to the intention of the parties, and conformably to the usage of trade in general, and of the particular trade to which it relates. or Although the owner of a ship has a lien on the cargo for freight and hire of the ship, his lien may be waived, without express words, by stipulations in the charter-party inconsistent therewith, when it can be fairly inferred that he meant to trust to the charterer's personal responsibility. If it be only doubtful in the construction of a charter-party whether the owner has waived his Hen upon the cargo, he must have the benefit of that doubt. Time and place for the payment of freight, other than those for the delivery of the cargo, is a waiver of the lien, unless expressly reserved. Freight payable in New York, and due, cannot be required, as a condition of discharging the cargo, in San Francisco, where not so provided in the charter-party, or agreed. Uncertainties, changes of relation between the parties. and consequences, may be stronger against A United States for the Northern District of In this case the libel was filed by Tyson in the District Court of the United States for the Northern District of California. The District Court decreed that Tyson was entitled to a lien upon the cargo of coal in question, for $12,000, etc. Raymond appealed to the Circuit Court of the United States. NOTE.-Lien for repairs and necessaries for vessel, and for supplies, salvage and freight. Proceedings in rem for. See note to Blaine v. The Charles Carter, 2 L. ed. U. S. 636; note to The Palmyra, 6 L. ed. U. S. 531, and note to The General Smith, 4 L. ed. U. S. 609. Lien for freight, who has, and how waived. Where by the terms of the contract the charterers have possession of the ship, the charter-party is not a contract for the transportation of goods, but is a letting of the ship, and the charterers are considered as owners for the voyage. In this case the general owners have no lien on the cargo for the hire of the ship. Lander v. Clark, 1 Hall, 355; Drinkwater v. The Spartan, Ware, 149; Clarkson v. Edes, 4 Cow. 470; Pickman v. Woods, 6 Pick. 248; Beicher v. Capper, 4 Man. & Gr. 502. A charterer, if he chooses, may carry goods for others, and as owner pro hac vice, he has a lien on these goods for the freights payable to him. Lander v. Clark, 1 Hall, 355. See Shaw v. Thompson, Olcott, 144. Where the general owner retains the possession, command and navigation of the vessel, his lien for freight remains. The charter-party is a mere affreightment. Marcardier v. Chesapeake Ins. Co. 8 Cranch, 49; Hooe v. Groverman, 1 Cranch, 237; 1 Johns. 229; Williams v. Johnson. 11 Barb. 501: Mactaggart v. Henry, 3 E. D. Smith, 390; Ruggles v. Buckner, 1 Paine, C. C. 358. Payment of freight to the owner would in such a case be a good defense to an action by charterer against shipper. Holmes v. Pavenstedt, 5 Sand. (N. Y.) 97. This lien does not exist where parties by contract ix time and manner of paying freight, so that the On suggestion of counsel, the decree of the District Court was affirmed by the Circuit Court for the purpose of taking and prosecuting an appeal to the Supreme Court. The reason of this probably was, that the Circuit Court consisted simply of the District Judge, sitting with the powers and the jurisdiction of the Judge of the Circuit Court. The minutes speak of this case as an appeal from the Circuit Court, as it is, in form, though really an appeal from the District Court. The case is stated by the court. Mr. Daniel Lord, for the appellant, after stating the facts, made the following points: No express terms of hypothecating the cargoes, or subjecting them to liens, are found in the charter-party; the omission of which usual provision in charters of American ships, confirms the inference from the general character of the instrument, that it was made on the credit of the charterers, without the exaction of any lien. Volunteer, 1 Sumn. 551; 3 Kent, Com. *220. The charter-party binding the ship owner to deliver the cargoes, without any reference to payment of charter money, supports the same construction. The reservation of payment, in such modes and under such circumstances as are above reof any lien; and the absence of any express ferred to, is inconsistent with the implication creation of any lien, excludes its existence in 2 Kent's Com. *635, *639. Mr. F. B. Cutting, for the appellee, after stating the facts, made the following points: this case. First. Possession of the ship continued in the owner, and he was to manage, control and navigate her. The master was his agent, and not the agent of the charterer. The libelant remained subject to all the responsibilities and obligations of ownership, and was answerable to the charterers for the acts and conduct of the master and mariners. cargo is to be delivered before the time fixed for payment of freight. Chandler v. Belden, 18 Johns. 157. Delivery of cargo without demanding freight or notifying him of the master's lien therefor will, in absence of special agreement or local usage to contrary, discharge such lien. The Tan Bark case, 1 Brown Adm. 151; Bags of Linseed, 1 Black, 108. Mere manual delivery by the carrier to the consignee does not of itself necessarily operate to discharge the lien for freight. The delivery must be made with intent to part with his interest, or under circumstances from which the law will infer such intent. Gaughan v. One Hundred and Fiftyone Tons of Coal, 15 Int. Rev. Rec. 34. Carrier does not impair his right to hold balance of a consignment for freight on whole by delivering from it a portion of a particular consignment. Sears v. Bags of Linseed, 1 Cliff. 68; Fox v. Holt, 36 Conn. 558. Where goods have been delivered to the consignee, or time has been allowed for the payment of freight, the carrier's lien is lost. 4 A. & E. 260; 1 Sumn. 569; 2 Raym. 752; 6 East, 622; Perkins v. Hill, 2 Wood. & M. 158. It is also lost by sale of the goods. Marks v. Barker, 1 Wash. 178. If the carrier is induced by fraud or trick to surrender possession of the property, the lien for freight is not devested. The goods may be replevied. Bigelow v. Heaton, 6 Hill, 43 S. C. 4 Denio, 496. Both the common law and the statute recognize the right of the master or owner of a ship to a lien for freight, expenses and charges, and for his liability upon outstanding bills of lading. Campbell v. Conner, 70 N. Y. 424; aff'g, 41 N. Y. Supr. 9 J. & S. 450. |