discharge of his duty after the acts had been done. He has no right to take the law in his own hands to punish a seaman for disobedience of orders that had passed by. Other remedies must be had." Spencer v. Kelley (C. C.) 32 Fed. 838; Padmore v. Piltz (D. C.) 44 Fed. 104. But the weight of authority is not in accordance with the ruling made in these cases. I think the weight of authority is that "the master may inflict moderate chastisement for disobedience or disobedient conduct. He may correct a negligent, disobedient seaman by corporal punishment, but it must be reasonable, to a reasonable extent, and in a decent manner, and not disproportionate to the offense." Desty, Shipp. & Adm. § 129; Bangs v. Little, 1 Ware, 506, Fed. Cas. No. 839; 20 Am. & Eng. Enc. Law (2d Ed.) 205. "In cases of disobedient conduct the master may lawfully correct the seaman in a moderate and reasonable manner, and this rule of temperance and moderation in punishment must necessarily depend on the particular circumstances of each The court will not undertake to adjust very exactly, according to its own ideas of fitness and propriety, the balance between the gravity of the offense and the quantum of punishment." 20 Am. & Eng. Enc. Law (2d Ed.) 205; Butler v. McCellan, 1 Ware, 219, Fed. Čas. No. 2,242. In U. S. v. Beyer (C. C.) 31 Fed. 35, the court said: "The master is justified in inflicting a moderate correction to the seaman for disobedience of orders, * although it would be far more dignified and decent in a master to refrain from attacking or inflicting personal chastisement upon seamen, where there is disobedience of orders, and no great emergency exists." I fully concur in the views expressed by the court in this case. case. * * All the authorities, however, agree that to justify the seaman in leaving a vessel before the termination of a voyage on account of the cruelty of the master it must be apparent that he could not remain without extreme danger to his personal safety. Sherwood v. McIntosh, I Ware, 109, Fed. Cas. No. 12,778; The Alvena (D. C.) 22 Fed. 861. "Repeated acts of cruelty and oppression on the part of the master will justify a seaman in deserting the vessel, but not a single act of assault and battery, although it may exceed the bounds of moderation, unless there be reasonable grounds for apprehending that such acts of oppression will be repeated." Steele v. Thacher, 1 Ware, 91, Fed. Cas. No. 13,348; The Alvena, supra. "Repeated acts of cruelty by the master, if accompanied by threats of death or enormous bodily harm, will justify a seaman in leaving the service of the vessel before the voyage is ended. To justify his departure, it must appear that he could not remain without extra danger to his personal safety." Desty, Shipp. & Adm. § 185. While it is the duty of the master to treat the seaman with humanity, which duty on his part is not only a moral one, but is implied by the terms of his contract, and not to give himself up to a harsh and cruel temper, and beat the seaman with unreasonable severity, or punish him without cause, or with cause do so with wanton cruelty, the seaman engages for the faithful performance of the services for which he contracted, and it is his duty to obey all law ful orders of the master, to perform his services with diligence and fidelity, and not to leave the vessel until the expiration of the term of service for which he has contracted, unless the master is guilty of a gross abuse of his powers, and of the violation of the implied terms of his contract, which are equivalent to a discharge. Steele v. Thacher, supra; The Alvena, supra. There were no repeated acts of cruelty towards the libelant by the master in this case. There were no threats of any enormous bodily harm, and no reason, so far as the evidence shows, why the libelant could not have remained on the boat without extra danger to his personal safety. My opinion is that the libelant was not justified in leaving the boat before the voyage ended. His leaving the boat without justification operates as a forfeiture of his wages. The libel must therefore be dismissed; and it is so ordered. RISER v. SOUTHERN RY. CO. et al. (Circuit Court, D. South Carolina. May 23, 1902.) 1. REMOVAL OF CAUSES-SEPARABLE CONTROVERSY-HOW DETERMIned. The question whether an action involves a separable controversy which renders it removable by a nonresident defendant is to be determined from what appears as matter of law on the face of the plaintiff's pleading.1 2. SAME-ACTION TO RECOVER FOR JOINT TORT. An action against a railroad company and one of its conductors to recover for an injury received by plaintiff in a collision, alleged in his complaint to have been caused by the failure of the conductor to observe certain regulations and rules of the company, which failure was due to the joint and concurrent negligence" of the defendants, is one for a joint tort, and is not removable by the railroad company on the ground that it involves a separable controversy, where plaintiff and the conductor are citizens of the same state. On Motion to Remand to State Court. Johnstone & Welch, for the motion. SIMONTON, Circuit Judge. This case comes up on a motion to remand the cause which had been removed from the state court by the Southern Railway Company, on the ground that under the pleadings a separable controversy exists against it. In discussing this question we have no concern with the merits of the case, nor can we be controlled by an opinion as to the necessary result if the case goes to a trial. It is a question of pleading. Railway Co. v. Dixon, 179 U. S. 135, 21 Sup. Ct. 67, 45 L. Ed. 121. Does the complaint set up a joint or several cause of action? "The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to 1 Removal of causes involving separable controversies, see notes to Rob bins v. Ellenbogen, 18 O. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155. be in the pleadings." Powers v. Railroad Co., 169 U. S. 97, 18 Sup. Ct. 266, 42 L. Ed. 673. It may be that the plaintiff on the trial may be unable to establish the joint cause of action. It may be that his proof may show that one of the defendants is not guilty of the tort alleged and the other solely guilty. Perhaps a demurrer to the complaint on this ground may be sustained. "If the complaint should be so construed, the question would still remain whether the cause of action was not entire as the case stood, and the objection of the difference in the character of the liability matter of defense, which might force an election or defeat the action as to one of the parties." Railway Co. v. Dixon, 179 U. S. 139, 21 Sup. Ct. 70, 45 L. Ed. 121. In an action of tort the cause of action is whatever the plaintiff declares it to be in his pleading. Matters of defense cannot be availed of as ground for removal. The complaint is against the Southern Railway Company and Marion Rich, one of its conductors. The plaintiff, a mail clerk on the train of the Southern Railway Company, managed by Rich, the conductor, was injured in a collision, and he brings this action against both of the defendants, charging that he was injured in the collision which was due to "the joint and concurrent fault of the codefendants." He sets out in his complaint that the immediate cause of the collision was the failure of Rich, the conductor, to observe certain rules and regulations of the company, and that this failure was due to the "joint and concurrent negligence, carelessness, and fault of the said defendants." In all the paragraphs of his complaint he charges this joint and concurrent negligence, etc., as the cause of action. On this he must stand or fall. He may fail in his proof. His claim may not be sustained. But the cause of action relied on is joint; and the controversy set up is joint, not separable. There is another point of view. The complaint sets out the facts. of the case, the injury of the plaintiff by reason of the nonobservance on the part of the conductor, the agent and representative of the railroad company, of the rules established for his guidance, and charges that this negligence was the joint and concurrent negligence of the railway company and the conductor. Would it not be competent for the plaintiff to show that the conductor was a careless and unobservant person, within the knowledge of the company, and on such showing claim that the injury was the joint and concurrent action of the two defendants? Again, the complaint sets out that the plaintiff was injured by reason of the negligence of the railway company and of the conductor. Suppose that on the trial he proves that the conductor was negligent. The conductor is the representative of the corporation. His negligence is its negligence. If he is liable, the corporation by reason of his liability is also liable. It would be vain for the railway company to prove the utmost care on its part in giving proper instructions to the conductor. If he be negligent, the corporation, notwithstanding its instructions, is guilty, because he was negligent. "I am answerable for the wrongs of my servant or agent, not because he is authorized by me or personally represents me, but because he is about my affairs, and I am bound to see that my affairs are con ducted with due regard to the safety of others." Pol. Torts (Am. Ed.) 89, 90. So, when the servant of a railway company is guilty of negligence in the course of his employment, his negligence is the negligence of the railway company. It may be one act, but the liability is the liability of both. The one cannot be separated from the other. The act of the conductor, in contemplation of law, is so far the act of the master that he is answerable for it. Farwell v. Railroad Corp., 4 Metc. (Mass.) 49, 38 Am. Dec. 339. Put it in another way: The gravamen of the complaint is injury to the plaintiff, caused by negligence in disobeying the rules of the company. If this be proved, then the conductor, Rich, certainly is responsible, and if he be responsible because of his negligence, as certainly the railway company, his principal, is also responsible. To defend itself the railway company must participate in the controversy of the conductor, and must maintain the same defense as he does, that the collision was not caused by his negligence. However careful the railway company may have been in the issuance of its orders to prevent the collision, if that collision occurred by reason of the negligence of the conductor in obeying the orders the railway company is liable. It cannot separate its case from that of the conductor. See Bayley v. Railway Co., 3 Moak, Eng. R. 312. This case cannot be distinguished from Railway Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121, and is controlled by it. Let an order to remand be had. FISHERIES CO. v. LENNEN et al. (Circuit Court, D. Connecticut. June 6, 1902.) 1. CONTRACTS-LEGALITY—AGREEMENT IN RESTRAINT of Trade. A contract by which sellers of property agreed as a condition of the sale that they would not become engaged or interested in the business of catching or manufacturing the products from certain classes of fish along the Atlantic seaboard, in competition with the business of the purchaser, for the term of 20 years, is not void as in restraint of trade and against public policy, nor on the ground that it is oppressive and unreasonable. In Equity. On demurrer to bill. Goodwin Stoddard, for complainant. Perkins & Perkins and H. A. Hull, for defendants. PLATT, District Judge. The essential facts in this case found in the complaint and admitted by the demurrer are these: On or about the 21st day of February, 1898, James Lennen and Louis P. Allyn, both residents and citizens of Connecticut, did, simultaneously with the payment to them of the consideration in said contract shown, enter into a contract with the American Fisheries Com 11. See Contracts, vol. 11, Cent. Dig. §§ 555, 558, 559. pany, a New Jersey corporation, in which, among other things, it was provided substantially as follows: "Now, therefore, in consideration of the premises and the sum of one dollar to each of us in hand paid by the said the American Fisheries Company, receipt of which is hereby acknowledged, we, the said James Lennen and Louis P. Allyn, each for ourselves, and not for one another, contract. covenant, and agree to and with the said the American Fisheries Company. its successors and assigns, that we will not, nor will either of us, be or become interested in, or connected with, any business other than that to be conducted by said the American Fisheries Company, its successors or assigns, in catching menhaden, herring, or other fish used in the manufacture of oil or scrap, nor will we, or either of us, either directly or indirectly, become interested in the business of manufacturing such or any fish into oil or guano, upon, along, or off the Atlantic seaboard, for a period of twenty (20) years from the 26th day of November, 1897; it being the intention of this agreement to bind ourselves, and each of us, firmly by these presents, not to enter into, or become directly or indirectly interested in. the business of catching or manufacturing any fish, when caught, into oil or guano during the period of twenty (20) years above mentioned." On or about the 9th day of July, 1900, said American Fisheries Company assigned all the property and rights acquired under said agreement to the Fisheries Company, plaintiff herein, a corporation organized under the laws of the state of New Jersey, and located in said state. I quote paragraphs 2, 3, and 4 of the demurrer. "(2) That it does not appear by the said bill of complaint by what act or acts or in what way the respondents, James Lennen and Louis P. Allyn, or either of them, became connected with the corporation designated as the Menhaden Oil and Guano Company, as set forth in paragraph sixth of said bill of complaint, nor does it appear in any part of said bill of complaint how or by what act or acts said respondents, or either of them, became connected with said corporation. "(3) That it does not appear in said bill of complaint that the respondents became so connected with the said corporation designated as the Menhaden Oil and Guano Company, as set out in paragraph sixth of said bill of complaint, that they can be joined in this bill in equity. "(4) That it does not appear in said bill of complaint that said board of directors of said the American Fisheries Company had power or authority to sell or assign and transfer the agreement entered into between the respondents and said the American Fisheries Company, marked 'Exhibit B' and annexed to said bill of complaint, with all the rights of complaint under said agreement." The causes therein set forth are so trivial as to require no discussion. The ground taken in paragraph 6 of the demurrer, to wit, that the provisions of the contract were obnoxious to the laws of the United States, commonly referred to as the "Sherman Anti-Trust Act," was practically abandoned at the argument. I further quote paragraphs I and 5 of the demurrer : "(1) That it appears by the complainant's own showing by the said bill of complaint that it is not entitled to the relief prayed by the bill of complaint against the respondents." "(5) That the said contract and agreement so far as it provided that said respondents or either of them would not be or become interested in or connected with any business other than that to be conducted by said the American Fisheries Company, its successors or assigns, in catching menhaden, herring, or other fish used in the manufacture of oil or scrap, nor to directly or indirectly become interested in the business of manufacturing such or |