432

FEDERAL REPORTER.

THE GIGLIOtl. THE BRITANNIA.

(Diatrict Oourt, S. D. New York.

June 7, 1887.)

1.

CARRIER-DAMAGE TO CARGo-BILL OF LADING-" BREAKAGE OR LEAKAGE"LIABILITY.

The steam-ship B. delivered in New York certain cases of olive oil. Some were entirely empty, and some partly empty, on delivery. The bill of lading .exempted the carrier from responsibilityfQr "breakage or leakage." It appeared by the evidence that the leaks were caused by some persons tamperIng with the cases while in the carrier's custody. Held, that for such violence to the cases the carrier was responsible. The presumptions are against reasonable care on the. part of the ship wIlen such a cause of loss is proved.

Iil A,.dmiralty. ,..D.. for libelant. ,; 'faft .& Benedict, for claimants.

J:. The libelant claims for the injury and Io,ss susta,ined in the t:ransportation of someoliv\3 oil from Geri(?a to New'York, in Nov6mber, 1884.. There ,were.;1;9 wooden boxes or cases, containing each four hermetically sealed cans of Qil. . On delivery, some of the cans were whollyem,pty, some p,artly empty, and some of the boxes so ,soaked The bill of lading exempted the carwith oil as tq be r"ierfrom responsibility for "breakage or leakage." The defense would prevail, therefore, unless it 'a.ppeared that the loss arose through some on the ,part of the The burden want of care orsome of proving this is upon the libelant. The Vaderland, 18 Fed. Rep. 733, 739-741, and cases cited; The Invincible, 1 Low. Dec. 225; Richard$ v. Hansen, 1 Fed. Rep. 54; The Sabioncello, 7 Ben. 358. The libelant had long been accustomed to import such oil from the same region in Italy, and from the same, consignors. It was put up in the same manner as these cases, and no similar loss or injury had before The supplementary proof shows that the cases were shipped in goo<l condition. In the present case the evidence leaves no doubt ·thatthe leak was caused by some persons tampering with the cases for thEl,purpose of extracting oil, while the cases were in the carriElr's custoqy., and that the loss arose in part, probably, from the abstractl<m of oil, and in part from leakage, through nail holes made in the for the·purpose of oil. For such violence done to the cases, and to. the cans, the carrier There is nothing in the bill oflading that wccepts larceny; or such a cause of loss; and the presumptions are also against reasonable care on the part of the ship when such a cause of loss is proved. Decree for the libelant, but, Inasmuch as upon the original hearing of the cause the libelant's proofs were insufficient, the decree must be without costs to either party.
lReported by Edward G. Benedict, Esq., of the New York bar.

STATE SAVINGS ASS'N STATE SAVINGS ASS'N

V.

HOWARD. HOWARD.

433

V.

(Oilrcuit Oourt, E. D. Mi880uri. June 8, 1887.)
COURTS-JURISDICTION-CITIZENSHIP.

,Where a person residing with his family, and doing business, in one state, leaves his family at home, and goes to another state, and engages in business there also. and remains for a month, with ,the intention of stfbsequently place. of permane,ntly to the 8u.ch temporary J:esldence and mtentlOtl to remove wlll not affect his cltlzenshlp.

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Dou.jftai8 for plaintiff. ,E. S. MetcalJ, for defendant.

At Law.

'Plea in abatement.

THAYER, J.,(orally.), In the case of the State Savings Association agains,tW .C. Howard; the point in controversy is as to the residence of the'ddfendantHoward on ,the seventh of May, 1884, when the ,suit'was oroogliC' 'rrhe defendantclahnB to have been a resident of the state of Missouri on that day, and, inMmuchas the ,plaintiff' in the case' is a Missouri corporation, he insists that this court has no jurisdiction. On the other hand, the plaintiff contends that the defendant, on the seventh of May, 1884, was a resident of the state of Texas. The facts are that Howard1Yas a Qfthe ,fltate ,of Texas, and was E:)ngaged in the in that state, and in various other entt'rprises, from the hotel year 1877 up to the spring .of the year 1884. In February and March, 1884, he came to this city on one or two occasions, with a view of purchasing an interest in the Lindell Hotel. He finally succeeded in purCh8.slng ,R controlling iliterest in the stock, and was eleccedpresident of that hotel ¥sudation. Subsequently, on Nlefifteenth day of April, 1884, he came ht're from Texas with a gentleman whom he had appointed to be manager of the hotel, and remained here until about the fifteenth of May following,at which time he returned to the state of Texas, and has continued to reside there ever since; has abandoned the hotel enterprise in this city, and, so far as the evidence shows, never came hack to this city after his return to Texas, on or about the fifteenth of May, 1884. Undoubtedly, the defendant might have become a citizen of the state of Missouri by residing in the state from April 15th until May 7th, but that would involve an abandonment of his former residence in the state of Texas, inasmuch as a man cannot be at the same time a citizen of two different states: but in view of the fact that defendant onlvresided here for about a mo'nth, and then went hack to Texas, it should be made to appear very clearly that he came here on April 15, 1884, with the intention of taking up his permanent abode in this city from that date, and that heat the same time abandoned his residence in the state of Tens; The proof in this case is not sufficient to satisfy me that he at any time abandoned his residence in the state of Texas. It shows, on the v.31F.no.8-28