(11l,trfd Oo'lJll't, E. D.
14, 1882.) HlmMOOB";,
, ADMIRALTY-COLLISION BETWEEN: VESSEL, IN MOTION.urn VEBSEL AT :iNj}$-LmELAGAINBT SEVERAL PROOF.
, Where a barge sinks two davs after collision with a ship in lIlO' thin, while' the barge was her moorings, and where' at the time of the' 'aileg'ed collision no complaint was made and but sllghtinjury discovered; and the" weather was such,withthe river pll,Cked, with ice" that ,the Inj1p'ymight have, ,,J;flsulted trom the grindinf ,ot ·the ice, tpe pf. rests:. upon the barge, in an action against the shIp and her tows, to'show that the' injury resulted from their negligence. ' ' .
,Libel by the Qwnet:s of the ba.rge George the'l5hip Ma,t'yland and the steam-tugs New Castle,and ",The libelants while the Tw:ibell p;roperly mOQred: at, the wharf adjoining Point, gas-W,ork,s, in, ,the, river ware, on December 27, by reason of the negligE/nc'e of the. ,ship or.tq.a,tof, tugs,-':the Castle, which parted an inferi9r and:the left the ship the, purpose, of, opeping a through thE! The, New Castle claimed that furnished 1>Y was of sound and and noy, aubmitted, theapproval of the New ..: ,Tb,e qfaimed tha.t ber in opening a channel, icewp.s' the of her engagemen,t and duty.. ion had occurred, at .the no was complained of, and nonediscoyer,f¥l, heyoI).d. upon:, the fender of ,the Twibell, toacc;oj-lnt for that the bruise ,e>1 tp.e ice. while the Maryland was passing. It $h/l>t t4e not sink until the following night, ice, the grinding and pounding against the Twibell were sufficient to have caused her to sink. Theodore M. Etting and Henry R. Edmunds, for libelants. H. G. Ward, for the New Castle. J. W. Coulston, for the Yorke. Curtis Tilton and Henry Flanders, for the Maryland. BUTLER, D. J. The positive testimony respectiug the collision is in direct conflict, and the inferences arising from surrounding circumstances may be invoked with as much force, at least, by the respond.
-Reported by Albert B. Guilbert, of the Philadelphia bar.
ents as by the libelant. While this point is thus left in doubt, the question of injury (supposing cQllision to have occurred) is left in equal if not in greater doubt. That the libelant was disturbed, in her position by the wharf, may be conceded. The river was full of ice, and the passage of a vessel in that vicinity would be likely to disturb it. Coming near, as the Maryland did, it is highly her by; was jammed against her, and th1s may have P!oduced all the disturbance seen by libelant's witnesses. That she w.as struck by the Maryland with force sufficient to break her fastenings, drive her through the ice 6Q to 80 feet, andIlotonly to stop the Maryland's forward motion,' to'produce a recoil of several feet, as alleged, by the )ibe!ant and s'Y0rn to by his most important witness, is wholly itl'credible: 'Such 'a blow, On her squ'are stern, would certainly halve cut her down instantly. The only evidence of injitry i8 the inference ftoII1 sinking two days later. Examination at the time disclosed 'no iIljury."The bruise on her fender (if recent) was immaterial. The respondents 'were allowed to go 'on their way without complaint, and if the barge had subsequently gone down nO suggestion of injury (it is reltsonable to infur) would ev'er have been made. '1'0 conclude' thai she went down in congequence of injuries received at the time, would not be justifiable. From Mtl1::iday, about noon, when the blow is saidto have been given, until Tuesday night, when she sank, no injury, or indication of injury, was discoverable. The river during all this time was full of floating ice; which was grinding and pounding against the boat. That she went down from this cause is, to say the least, quite as probable as that she sank from the alleged blow of two days before. Sufficient has been said to indicate the reasons for believing that the libelant's, case is not made out. He may have been injured, as he alleges, but with the burden of proof on him he has not succeeded in showing it. The libel must be dismissed.
WOLFF V.' ABOHmALD.
and others v. AnoHmALD.
(Oircuit Oourt, D. Mi,mesota. December Term, 1882.)
REMOVAL OF CAUBE-PETITION.
The allegations of the petition for removal are jurisdictional, and they mllst be positive and certain i and the allegation that the defendant is an aheu, " as plaintiff is informed and verily believes," is inllufficien.t,
Children of the United Statell who are born in foreign countries are citizens of the United States. In sal cases there is douptas to the jurisdiction, in a cause removed, the safer practice is to remand the cause to the stale court.
, :;. SAME-;JURIiIDICTION-REMAl'iDING CAUf>E.
Motion, to Remand. . Brown cf; Cheu, for plaintiff·. A. E. Bowe and Geo. N. Baxter, for defendant. MCCRARY, C. J., (orally.) We h,ave considered the motion to remand. This cause was removed here by the plaintiff on the ground that the defendant 13 an alien. The allegation of the petition for removal is that the defendant is,an alien, as plaintiff is informed and verily believes. rbis, we think, is insufflcient; the allegations of the petition for removal are jurisdictional, and they must be positive and certain, because the court cannot well proceed to taIte jurisdic. tion of a case and try the same as long as there is any doubt upon the question of jurisdiction, and it has, we think, been held that a petition for removal in this form is not good. Besides, it appears by the affidavits filed here that, to say the least, it is a question of grave doubt whether the defendant is an alien or not. His father was a native-born citizen of the United States, born in the state of Vermont. He removed to Canada and spent some of his time in Canada, and the remainder in the United States, and it seeUlS he was sometimes on one side of the line and sometimes on the' other. This defendant was born in Canada, and came with his father to this country before he reached his majority.· The law is that children of citizens of the United States, who are born in foreign coun. tries, are citizens of the United States. We think it is probable that this defendant is a citizen of the United States. Tha:t is so unless the father became a citizen of Great Britain. Of that there is no doubtful. 1nall cases where there proof, and it is, to say the v.14,uo.7-24: