originally to Maria Cummings, Lizzie S. Ladd, M. Louise Dunbar, Ellen S. Cornue, or Henry A. Root, as stated in said agreement of August 17, 1891, except so far as he may be relieved by a marshaling to be provided for as already stated.

Tenth. It may, if necessary, provide for such process or supplemental proceedings as may be required on the entry of said decree, or from time to time thereafter, to secure the proceeds of said shares or interests, or either of them, subject to the marshaling as already stated, and the application of said shares or interests, or either of them, or proceeds thereof, to the extinguishment of the amount remaining due to the estate of Robert G. Ingersoll at the entry of this decree, with interest thereon, all as already stated.

Eleventh. It will provide for the recovery of a single bill of costs by the complainant against Henry A. Root and Joseph A. Coram. Let the complainant file a draft decree, in accordance with our opinion passed down this day, on or before the 4th day of April next, the respondents to file corrections thereof on or before the 18th day of April next, all in accordance with rule 21.

THE JOSEPH B. THOMAS.

(District Court, E. D. Pennsylvania. March 24, 1905.)

No. 2.

1. SEAMEN-SHIPPING ARTICLES-LEGALITY OF PROVISIONS.

A provision in shipping articles that "the crew shall make no claim for wages or provisions while the vessel is detained by ice, prior to departure," is not in violation of Rev. St. §§ 4511, 4524 [U. S. Comp. St. 1901, pp. 3068, 3076], and is reasonable and valid.

2. SAME-RIGHT TO WAGES.

Libelants signed as seamen for a voyage on a vessel then ready to sail from the port of Philadelphia, but detained by ice; the shipping articles containing a provision that they should make no claim for wages or provisions while the vessel was so detained. They went on board and were furnished light work and given their provisions for a few days, and were then sent on shore by the master, but were told to be in readiness to come back whenever the vessel should be able to get away. When that time came they could either not be found or refused to go. Held, that they were not entitled to wages for the time they were on board, nor for extra pay, under Rev. St. § 4527 [U. S. Comp. St. 1901, p. 3077), as upon wrongful discharge.

In Admiralty. Suit by seamen to recover wages. On final hearing. Joseph Hill Brinton, for libelants.

J. Frank Staley, Francis C. Adler, and John F. Lewis, for respond

ent.

J. B. MCPHERSON, District Judge. The libelants are seamen who signed articles on December 31, 1903, at the port of Philadelphia for a voyage on the schooner Joseph B. Thomas to Brunswick, Ga. The vessel was then lying at a pier in the river Delaware, ready for sea, and only waiting for an opportunity to get away. She was detained because of the ice in the river, which was especially an obstruction below

the city. A tug had been engaged to tow her to the Capes; but the tug refused to undertake the work, declaring it to be too dangerous. The libelants came on board in the afternoon of January 2, 1904, and were put to shoveling snow off the deck, and during their stay on the ship they performed one or two other trifling services. The shipping articles contained this clause:

"The crew shall make no claim for wages or provisions while the vessel is detained by ice, prior to departure."

This agreement has been decided by Judge Holland to be valid, and not in conflict with sections 4511 and 4524 of the Revised Statutes [U. S. Comp. St. 1901, pp. 3068, 3076] (The Lillian [D. C.] 131 Fed. 375); but, although the master was under no obligation to feed the libelants, he furnished them with regular meals for six days, and while he then told them that he could no longer afford to do so, he gave them liberty to go ashore and see if they could find any temporary work to do. When the vessel was permitted to sail, they would be expected to come on board and fulfill their contract. Accordingly the libelants left the ship, but sent for their clothes the next day, and evidently paid no further attention to their agreement; for, when the ship was finally able to get away on January 14th, and the libelants were sent for, only two of them could be found, and they refused to go. This suit is brought for six days' wages and a month's extra pay, under section 4527 [U. S. Comp. St. 1901, p. 3077]. Upon the facts above stated, however, I do not think that any ground of recovery has been shown. The libelants expressly agreed not to claim wages or provisions while the vessel was detained by ice, and they should not be permitted to repudiate their contract. The very slight services they performed were amply compensated by the provisions they received, and, so far as I can see, they have no reason whatever to complain. They were not discharged, although they so declare, but were merely directed to await on shore the time when the ship would begin her voyage. It is true their necessities may have compelled them to accept other employment, and their failure to carry out their agreement may thus be excused; but I am unable to perceive any obligation on the part of the ship to pay wages in the face of the contract, and certainly there is no liability to a penalty, which is only to be inflicted in case of wrongful discharge. The libel must be dismissed.

WRIGHT v. SKINNER.

SAME v. WILLIAM SKINNER MFG. CO.

(District Court, S. D. New York. April 4, 1905.)

1. BILLS IN EQUITY-ALLEGING CITIZENSHIP.

A bill in equity in a federal court need allege the citizenship of the parties only where jurisdiction depends on diverse citizenship.

2. SAME-DEMURRER AND MOTION.

Omission of a bill to allege citizenship of the parties pursuant to equity rule 20 is to be corrected by motion, not by demurrer.

3. SAME-RECOVERY OF PAYMENTS BY BANKRUPT-DEMAND.

A bill in equity by a trustee in bankruptcy to recover payments made by a bankrupt within four months prior to bankruptcy need not allege a previous demand, though this is necessary in actions at law.

4. BANKRUPTCY-BILL BY TRUSTEE-INCONSISTENT CAUSES OF ACTION.

A bill by a trustee in bankruptcy to recover a payment of money made by a bankrupt within four months prior to bankruptcy, by alleging that the transaction amounted to a preference or a fraudulent payment, and that in either case he was entitled to its return, does not unite inconsistent causes of action.

These were demurrers to two bills in equity, filed by a trustee in bankruptcy to recover money paid by the bankrupts to the defendants within four months prior to the bankruptcy. The grounds of objection alleged in the demurrers were that the bills contained no statement of the place of abode or citizenship of the parties, as required by the twentieth equity rule, and that it appeared, by the plaintiff's own showing, by the bills, that the plaintiff was not entitled to the relief prayed for. In support of the latter ground of demurrer, it was argued that the bills did not allege any demand before suit, and that they alleged inconsistent causes of action; one cause of action being for a return of the money on the ground that it was a preference, and the other on the ground that it was a fraudulent transfer.

James, Schell & Elkus (James N. Rosenberg and Joseph M. Proskauer, of counsel), for complainant.

Austin B. Fletcher (William P. S. Melvin, of counsel), for defend

ants.

HOLT, District Judge An allegation of citizenship is not jurisdictional, except in cases in which the jurisdiction depends on the diverse citizenship of the parties. 2 Abb. U. S. Prac. 68. An allegation of the residence of the parties is not necessary to impart jurisdiction. Teese v. Phelps, 1 McAll. 17, Fed. Cas. No. 13,818. An 'omission to comply with the provisions of rule 20, requiring the place of abode of the parties to be stated, is, in my opinion, not properly corrected by demurrer, but by a motion. Harvey v. Richmond, etc., Co. (C. C.) 64 Fed. 19.

The general rule established by the authorities is that, in suits in equity of this kind, a previous demand is not necessary. It is undoubtedly necessary in actions at law, but in equity the bringing of the suit is itself a sufficient demand. Bruce v. Tilson, 25 N. Y. 194, 202.

The demurrers do not allege as grounds of demurrer that the bill is multifarious, or that the two causes of action are inconsistent. But in any event I think that it is not necessarily impossible that the payment may have been at the same time a preference, and a payment made with intent to hinder, delay, and defraud creditors; and, if it is either, it seems to me that the bill may be drawn so as to meet the alternative. There is alleged in these bills one transaction, consisting of a payment of money. The plaintiff alleges that it amounted to either a preference or a fraudulent payment, and that in either case he is entitled to its return. I cannot see in such an allegation any such inherent inconsistency, as there is in those cases in which it has been held to be not per

missible to unite two absolutely inconsistent causes for equitable relief, such as a claim to set aside a transfer as void, or to base a recovery on it as valid, and the other instances of legal inconsistency referred to by Judge Wallace in Wilkinson v. Dobbie, 12 Blatchf. 298, Fed. Cas. No. 17,670.

The demurrers are overruled, with costs, with leave to the defendants to answer within 10 days upon payment of such costs.

BURK v. MCCAFFREY et al.

(Circuit Court, E. D. Pennsylvania. April 6, 1905.)

No. 40.

ABATEMENT-PENDENCY OF ACTION IN STATE COURT.

It is no ground for abatement of a suit in a federal court that an action for the same subject-matter between the same parties is pending in a state court; and it is immaterial that a counterclaim is set up in the state court, it not appearing that the same defense may not be available in the federal court.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Abatement and Revival, §§ 87-91.

Pendency of action in state or federal court ground for abatement of action in the other, see note to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205.]

Demurrer to Plea in Abatement.
J. Whitaker Thompson, for plaintiff.
J. Joseph Murphy, for defendants.

J. B. MCPHERSON, District Judge. The plaintiff's action is correctly brought in the circuit court, unless the plea in abatement that has been filed by two of the defendants is well founded. The plea sets up that before the suit was brought another action had been begun by the plaintiff against all the defendants in one of the common pleas courts of Philadelphia county for the same subject-matter, asserting the same rights and asking for the same relief, and that this_action in the state court is still pending and undetermined. The plaintiff has demurred to the plea, and I think there can be no doubt that the demurrer must be sustained. The decided weight of authority is in favor of the position that the pendency of a suit in one court is not a defense to an action in another court between the same parties, where one of the tribunals is a federal and the other is a state tribunal of the same state, having concurrent jurisdiction: Stanton v. Embrey, 93 U. S. 554, 23 L. Ed. 983, and the cases cited in Rose's Notes to U. S. Reports, page 1010; Gordon v. Gilfoil, 99 U. S. 178, 25 L. Ed. 383; Barber Asphalt Co. v. Morris (C. C. A.) 132 Fed. 945; West v. McConnell, 25 Am. Dec. 195, note; Smith v. Lathrop, 84 Am. Dec. 456, note; and an elaborate note to Wilson v. Milliken (Ky.) 44 S. W. 660, 42 L. R. A. 449, 82 Am. St. Rep. 578. There are some decisions to the contrary, but the citations from the Supreme Court of the

United States are, of course, controlling, to say nothing of numerous other cases. The fact that the defendants set up a counterclaim in the state court does not seem to be material. So far as is now apparent, the same defense will be available in the circuit court. The demurrer to the plea in abatement is therefore sustained.

In re SAXTON FURNACE CO.

(District Court, E. D. Pennsylvania. March 27, 1905.)

No. 1,837.

1. BANKRUPTCY-SALE OF PROPERTY DISCHARGED OF LIENS-RIGHTS OF BOND

HOLDERS.

Holders of the bonds of a bankrupt corporation, secured by a mortgage, which gives them the right to use such bonds in the purchase of the property if sold at judicial sale, should not be deprived of such right by an order authorizing the trustee to sell the property free from liens, so long as their title to the bonds is unimpeached.

2. SAME-NOTICE OF APPLICATION.

To authorize an order for the sale of a bankrupt's property free of liens, the record should show affirmatively that every creditor whose lien will be discharged has received notice of the application therefor, and a general statement by the referee that such notice has been given is insufficient.

In Bankruptcy. On certificate from referee concerning order to sell, discharged of liens.

Arthur G. Dickson and Beck & Robinson, for trustee.
Rudolph M. Schick, for objecting creditor.

J. B. MCPHERSON, District Judge. I do not see how the proposed order of sale can be supported. The creditors who hold the furnace company's bonds have a right, under the mortgage, to use them in payment of the purchase money if the property shall be sold by a judicial sale, and of this right they should not be deprived if their title is unimpeachable. If the trustee disputes their right to retain the bonds, averring that they have received a preference, it would seem to be his duty to obtain a judicial decision of the question, even at the cost of delay and inconvenience.

Moreover, the record should show affirmatively that every creditor whose lien will be discharged by the sale has received notice of the trustee's application to sell. The referee's general statement that such notice "was given to each and every general creditor and lien creditor" is obviously insufficient. No doubt, this is his opinion, and it may be true, but his record must show the facts by which other persons can verify the correctness of his statement.

If the present is a favorable time for the sale of such property as furnaces and rolling mills, I regret the inevitable postponement, but the defects in the proceedings are fundamental, and can only be cured by the consent of the parties whose rights are involved. But as they must all desire to be paid, and paid speedily, I trust they may see