40 , . FEDERAL REPORTER, vol. 38.
\ therefore be borne by the libelants. The refusal ofthe tender prevents
the libelants from benefiting by the fact that the previous inchoate right
of suit had then become perfected,·(The Jlhrtlwz, Blatchf. & H. 169,) and
the special circumstances do not exist here upon which recovery is some—
times allowed in suits premature at the start, (Eight Hundred and Forty-
·O·nc Tbns qffron Ore, 15 Fed. Rep. 615, 25 Fed. Rep. 864.)
- 2. The cross-libel suit commenced May 5th for the recovery of $3,000 ,
damages was also premature; for the ship still had not only a lien on
the ore for the unascertained freight, but also the right of possession, and
the right to prevent the cre going out of her presence or control. The _
discharge; into the canal-boat along-side was no waiver of either right.
— That was not done for the purposeof putting the ore under the absolute
possession and control of the consignee, but for mutual convenience in
the hanrlling and weighing of the ore in the process of discharge, and to
enable the consignee to remove the creimmediately when he should be-
come entitled to its possession npon payment or tender of the freight
ascertained to,be due. Had any attempt been made to run away with
the ore, no doubt a libel and an arrest of the ore would have been sus-
tained to maintain the ship’s right of possession, as repl-evin or trespass
would lie upon any similar unlawful attempt to remove the ore, had it
been discharged _upon the dock. Neither the libel nor the proof shows
any such attempt or intention.
-it-The crossdibel, filed May 5th, and served the same day, alleges only
tbatthe carriers "willfully and wrongfully refused to deliver" the ore,
i. e., on or before the 5th of May. As no payment or tender of freight
. had then been made, the refusal to deliver was not wrongful, but right-
ful. The supplemental cross~1ibeliiled in March, 1883, "reitera.tes the
allegations of the libel," and saysthe weight and freight were ascertained
‘*on or about May 5th, and that thereupon" the amount due was ten-
dered, but delivery of the ore refused. But the weight was not ascertain-
able till the 6th, and the tender was not made till May 10th; so that it
still remains true that theoriginal cross—libel was premature. No cause
of action existed when the vessel was arrested on May 5th, and the rule
of pleading is that a bill wholly defective cannot be sustained through a
supplemental bill founded on matters arising subsequently. . Candler v.
Pettit, 1 Paige, 168; Pinch v. Anthony, 10 Allen, 471, 477; Mason v. Rail-
road C0., 10 Fed. Rep. 334; _Muller v. Earle, 37 N. Y. Super. Ct. 388.
The original libelants, had they accepted the tender, would have been
‘ entitled on delivery of the ore to a dismissal of the cross-libel, with costs
upto that time; and as the tender was not followed by a deposit in the
registry, in accordance with rule 72 of this court, it would have had no
effect upon the liability for the subsequent costs upon dismissal of the
original suit. r
The counsel for the cross-libelant, apprehending that his suit might be
held to be premature, had, after the tender, again arrested the vessel in
the district court of Massachusetts for the refusal to deliver after tender;
and thereupon moved here for leave to discontinue the cross-libel, and
pay costs. It was opposed on account of the great inconvenience to both