t\lre(j, it· was colleoted and the amount applied to the extinp;uishment of the said debt. . But when the .notes were all colleoted the New York bank had reo maining in its hands about $7,OOO.over and above what was neoes.sary to pay said account against Newark bank. It paid the sur· plus to the receiver, and the complainants insist that they have at least an equitable lien thereon I and. that the receiver should offset the Same by allowing said surplus to be paid on account of the lastnamed note. Thi& claim oannot be allowed. It was the duty of the New York bainktoapply the prooeeds of the notes, as they were sev· erally pa.id, to the extinguishment of the debt for whioh they were oollateral, and when oomplainants' note was paid and oredited the reoeiver had no right to demand, nor was the New York bank bound to refund, any part thereof until the overdrawn acoount was fully paid. Nor will the receiver be permitted, as against the other oreditors of the insolvent bank, to use any portion of this surplus to give a prefel'ence over ,them to the oomplainants. Let -a decree be drawn in oonfonnity with this opinion, with oosts of the o01Il;plainants.
FRENCH v. (JARTER Il.nd others.
'Jircuit Oourt, S. D. New York.
SHIPMAN, J. The demurrer of the defendant Oliver S. Carter, in the above-entitled oause, is overruled, with leave to the said defendant to answer the bill within 30 days after the entry of the order overrul. ing the demurrer. The plaintiff is entitled to his costs to the date of the hearing upon the demurrer.
E. M. NORTON ana barges.-
(Oircuit O(Jurt, E. D. Louisiana. January, 18M.)
COMMON CARRIER-NEGI,IGENCE OF ,LICENSED PILOT.
For negligence or want of skill the owner or boat is responsible, although a licensed pilot was the real delinquent., .
The result is a safe criterion bywbicb to judge of the character of tbe act. which has causen it.
-Reported by Joseph P. Hornor, Esq. of tbe New Orleans \,8r.
SAME-BuRDEN OF PROOF.
When the evidence does n()t (to a degree BUfficient to fix bility) the cause of the loss of a vessel, the case should be decided upon general principles governing sl:!ch cases. of goods shipped' raises the presumption of negligence ontha part 'of the carrier, and, in a'll action, for them, t.he burden is on the carrier to shoW' good excuse for t,henon-delivery, and, if he fail to do so, he must be held liable.
Gordon & Gomilla shipped in January, 1880, a large lot of corn by the St. Louis & New Orleans Navigation Company barge, Sallie Pearce, from St. Louis to New Orleans. The barge was one of four barges,' composing the tow of the steam-boat E. M. Norton. The tow pro·· ceeded down the river without accident to near Cairo, Illinois, when, ' in passing across the point behind Willow bar, 6J?-6of the barges, the Moore, was run aground with such. as to part her lines,open, her seams, and tear her loose from the tow. No damage was apparently'done to' the other barges. After some attempt to' get the Moore off, and failing, the other barges,including the Pearce, were towed to the Missouri shore and landed at Bird'sPoint, where they were. left moored to the bank, while the Norton returned to the' Moore to get her off and 'save the cargo. ShOrtly after the Pearce was landed sbe was observed to be leaking, and,in spite of the efforts made by'tbe two men left in charge of the barges, she soon listed and sunk, a total loss. The Hibernia Insurance Company, insurer of half the value of the cargo, and subrogated to the demands of Gordoll& Gomilla, bring this libel to recover the the cargo, less 'freight. Thomas Gilmore, JohnA. Gilmore, Samuel L.Gilmo'l'e, JosephC. Gilmore. and O. B. Sansum, for libelaht,. .. John A. Campbell and J. Ward Gurley, Jr., for dlaimant. PARDEE, J. The evidence' in this case shows 'that the barge Sallie Pearce was apparently seaworthy when she started onhel' voyage. She had been repaired at large expense about one year previbus.' 'fhe defense that she was landed at Bird'sPoint a.gainst· "an unby the' barge pressing known andullseen root of a tree;" against with her side, "ca.used her side to'be pressed in aild'priro:uced:> the leak from 'which the barge 'was s'Utlk," ,is by the evidence. In fact, the evidence shows that the Sallie Pearce was not moored next to the bank, but a barge intervened, and that the depth of water where she sunk was 40 or 50 feet, completely negativing the theory that bel' side was pressing an uncovered root of a tree depending to the bank. If the barge was seaworthy, and she was not injured while lying at BinI's Point, tlw prc::lumption is
that she was injured and set aleak by the shock and strain resulting from the grounding of the barge Moore, which appears to have been very violent,-so violent that the Moore was torn loose from the tow, and run 80 feet into and over the bank. And if the evidence gives any reason for the leaking of the Pearce which resulted in her loss, the grounding of the Moore, and the injuries resulting therefrom, is the reason. The evidence shows that the grounding of part of the tow was from attempting to take the tow across the point behind Willow bar instead of following the channel of the river. This was done by the pilot over the objection of the master. In my opinion, based on the evidence, it was negligence to take that coarse. If it was not negligence, then the handling of the tow and barges was unskillful. There may be cases, and I think this is one, in which "the result is a safe criterion by which to judge of the character of the act which has caused it." See The Webb, 14 Wall. 406. For this negligence or want of skill the owner or boat is responsible, although a licensed pilot was the real delinquent. See 'The China" 7 Wall. 67; The Merrimac, 14 Wall. 199; Sherlock v. Alling, 93 U. S. 105. But, in fact, the evidence (loes not explain (to a degree sufficient to fix responsibility) the cause of the loss of the Sallie Pearce, and the consequent loss of libelant's goods. The case should, therefore, be deupon the general principles governing such cases, instead of upon any particular case or state of facts as proved. The claimant was a common carrier for hire. Non-delivery of the goods shipped raises the presumption of negligence on the part of the carrier. See Nelson v. Woodruff, 1 Black, 156. In an action for goods not delivered, the burden is on the carrier to show good excuse for the non-delivery. The carrier, having failed in this case to excuse himself, must be held liable. The decree of the district court was correct, and the same, less some interest which libelants remit, should be entered in this court. Let a decree be 'entered for the libelants in the same terms as that of .the district court, except that interest shall commence to run from Januarv 1. 1881. instead of from indicial dem!>n"; Q.nrl for all costs.
GRIBBLE V. PIONEER PRESS 00.
(Oircuit Court, D. Minnesota. February 5, 1883.)
REMOVAL OF CAUSE-CITIZENSHIP.
Where there is reason to doubt the existence of jurisdictional facts, the "ar·· ties may be examined upon the question, and the court may direct the pruper pleadings to be tiled to raise the issues involved in such question.
Where both plaintiff and defendant are citizens of the state where suit is brought this court has no jurisdiction, and the cause will be remanded.
An alien naturalized under the laws of the United States is 8 citizen of the state in which he resides.
This cause was removed from the district court of Ramsey county by the defendant, upon the ground that it was at the time of the commencement of the action a citizen of the state of Minnesota and the plaintiff an The plaintiff filed a plea. to the jurisdiction of the court, alleging that at said time he was a citizen of the same state with the defendant. A jury trial was waived, and the issue raised by the plea was brought to trial before the court. The plaintiff testified that he was about 60 years old; that he was born in Devonshire county, England; that his father was Joseph Gribble, an Englishman, who immiinto the country, bringing plaintiff with him, when he was about nine years old; that he knew of his father's voting in the state where they then resided before he, witness, was 17 years old; that he had himself voted in different states, and ever since he was 21 years old; that he had pre-empted public land of the United States, using therefor as proof of citizenship the original naturalization papers of his father. The plaintiff offered in evidence a duplicate of the naturalization papers of his father, which are in the words and figures following:
"Commonwealth of Pennsylvania, Allegheny County: "Be it remembered that at a court of quarter sessions, held at the city of Pittsburgh, in and for the county of Allegheny, in the commonwealth of Pennsylvania, in the United States of America, on the second day of October, A. D. 1838, Joseph Gribble, a native of England, exhibited a petition to be admitted to become a citizen of the United States. And it appearing to the satisfaction of the court that he has resided within the limits and under the jurisdiction of the United States for five years immediately preceding his application, and that during that time he has behavetl as a man of good moral