should have seen the Kearney approaching. The counties filed an answer denying negligence, and also filed a cross-libel against the transportation company to recover for the damage done to the bridge, on the ground that the negligent operation of the Kearney resulted in the injury to it.

[1] There are two questions of fact to determine in the first case. One is whether or not the Kearney blew three blasts, as alleged, to enter the draw; and the other is whether or not the bridge tender blew a responsive whistle for the Kearney to come on. On the first question, there is affirmative testimony both ways, that the Kearney blew and that she did not blow. A finding of the fact either way involves the credibility of witnesses. Judge Lynch, who saw and heard them testify, found that she did not blow. A fact found by the trial judge, who saw and heard the witnesses, should not be disturbed by an appellate court, unless the error is manifest and clearly against the evidence. The Dolbadarn Castle, 222 F. 838, 138 C. C. A. 264; The W. H. Flannery, 249 F. 349, 161 C. C. A. 357; The Beaver, 253 F. 312, 165 C. C. A. 94; The Mahanoy, 258 F. 114, 169 C. C. A. 200; National Dredging & Lighterage Co. v. Turney Transportation Co. (C. C. A.) 281 F. 315; American Merchant Marine Insurance Co. v. Liberty Sand & Gravel Co. (C. C. A.) 282 F. 514; Low Transportation Co. v. Davis, Director General of Railroads (C. C. A.) 9 F. (2d) 392. We feel that, under the testimony, this fact should stand as found by the trial judge. There is also positive testimony that the bridge tender did not blow the responsive whistles for the Kearney to "come on." The master said that he heard the bridge tender, or some one, blow three whistles; but that was before the Henrietta went through, and so he did not know whether they were intended for the Kearney or the Henrietta. Judge Lynch did not make a finding on this point, except by inference. He said:

"The fault, if there was any fault, was on the part of the master of the Kearney in assuming that the engineer of the bridge would see that he was following the Henrietta through these other bridges; and they sort of proceeded along the assumption that everything would be all right, and, when it was too late, then he could not prevent the collision with the bridge; that is the way it strikes me. He assumed that the engineer of this bridge saw what had been done, passing through the other bridges, and relied on it."

The evidence justifies the finding that no one at the bridge blew any whistles for the Kearney to "come on." The fact having been

found that the Kearney did not blow for the draw to open, the libel was dismissed. There was testimony from which the trial judge could find the facts, and we feel that we are not justified in disturbing them, and therefore the decree is affirmed.

[2, 3] He subsequently dismissed the crosslibel "for lack of jurisdiction in the court of admiralty," and the counties appealed. The question in this case is one of law. A crosslibel may be filed upon any counterclaim arising out of the same contract or cause of action, or matter auxiliary to it, for which the original libel was filed. Admiralty Rule No. 50, 254 U. S. 702; The Dove, 91 U. S. 381, 23 L. Ed. 354. As a historical fact, cross-libels were not allowed until 1856, and they have since been rather strictly construed. Snow v. Carruth, 1 Spr. 324, 327, Fed. Cas. No. 13,144; Washington-Southern Navigation Co. v. Baltimore & Philadephia Steamboat Co., 263 U. S. 629, 637, 44 S. Ct. 220, 68 L. Ed. 480.

[4] The cross-respondent contends that the District Court had no jurisdiction over the subject-matter of the cross-libel, because the pier or bridge, being a mere extension of the land, is not within the admiralty jurisdiction, and there was nothing to sustain the jurisdiction after the libel had been dismissed. A claim arising from an injury by a vessel to a bridge, which, though over navigable waters, is connected with the shore and immediately concerned with commerce on land, is not within the admiralty jurisdiction. The Plymouth, 70 U. S. (3 Wall.) 20, 18 L. Ed. 125; Cleveland Co. v. Cleveland Steamship Co., 208 U. S. 316, 321, 28 S. Ct. 414, 52 L. Ed. 508, 13 Ann. Cas. 1215; Martin v. West, 222 U. S. 191, 197, 32 S. Ct. 42, 56 L. Ed. 159, 36 L. R. A. (N. S.) 592.

But the counties say that this rule does not apply to the cross-libel, because it arose out of the same cause of action as the original libel, over which the court had jurisdiction, and that it is the general rule of law that, when the jurisdiction of a District Court has once attached, the change of conditions will not oust the jurisdiction. Morgan v. Morgan, 15 U. S. (2 Wheat.), 290, 4 L. Ed. 242; Clarke v. Mathewson, 37 U. S. (12 Pet.) 164, 9 L. Ed. 1041; Kanouse v. Martin, 56 U. S. (15 How.) 198, 14 L. Ed. 660; Cook v. United States, 69 U. S. (2 Wall.) 218, 17 L. Ed. 755; Kirby v. American Soda Fountain Co., 194 U. S. 141, 145, 24 S. Ct. 619, 48 L. Ed. 911. There is no question about the soundness of this proposition when applied to causes in equity. The question is whether or not the rule is applicable to causes in admiralty. It

In Case No. 3706:

Louis A. Stebbins and Ralph F. Potter, both of Chicago, Ill., for appellants.

Donovan N. Hoover, of Indianapolis, Ind., for appellees.

Before EVANS, PAGE, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge. Each of these suits was brought by policy holders of the Illinois Bankers' Life Association. In 3705 the plaintiffs, appellees, are eighteen citizens of Michigan, and the defendants, appellants, are five persons alleged to be the directors and officers of the association and citizens of Illinois. In 3706 the plaintiffs, appellees, are two citizens of Indiana, and the defendants, appellants, are the same five persons, plus the Illinois Bankers' Life Association and the Illinois Bankers' Life Assurance Company, which last company, it is alleged, was formed by the individual defendants to take over the assets of the first-named company. The life association and the life assurance company are Illinois corporations. In each case the complaint is of the actual and contemplated handling of the affairs and assets of the life association.

The first question raised is to the jurisdiction of the court over the causes. In this respect both stand upon the same footing and may be disposed of together.

[1-3] Diversity of citizenship appearing, the question turns upon the amount in controversy. The general allegation that the amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000, is not controlling. If the particular averments of the complaints disclose the contrary, the general averment is of no avail. Lion Bonding Co. v. Karatz, 262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871. Appellees cannot rely upon the general allegation. The particular averments in each complaint as to the amount of the assets or funds of the company and the number of persons holding policies in it and having interests in its assets and funds show conclusively that no single appellee can have a claim or interest to the amount of $3,000. In 3705 the contention is thus stated in appellees' brief:

"Members of an assessment insurance association, where it is incorporated as such, have common and undivided interests in the assets thereof"-and the insistence is that they have a common and undivided interest in a trust fund held for them and more than 60,000 other policy holders, and that they may aggregate their claims to this trust fund for jurisdictional purposes. In 3706 appellees in their brief thus state their position: “All members having a common and undivided interest in the funds of the association, and the claims of all plaintiffs depending on the same facts, the amount of the funds of the association determines the jurisdictional amount.” Thus we have a double-headed contention (a) that, no single plaintiff having a claim sufficient to give jurisdiction, their claims may be aggregated for such purpose; and (b) the amount of the assets or funds of the assoeiation determines the amount in controversy. Neither of these contentions can stand in the light of the case of Robbins v. Western Automobile Insurance Co., 4 F. (2d) 249, decided by this court, and the cases cited and relied on in that case, Lion Bonding Co. v. Karatz, supra, and Eberhard v. Northwestern Mutual Life Ins. Co., 241 F. 353, 154 C. C. A. 233. [4] Appellees' cases are not helped by the averments that they are class suits, brought by them on behalf of themselves and of other policy holders. The practice of allowing suits to be so brought for convenience and economy does not affect the question under discussion. So far as concerns the relation of the appellees to the company as policy holders and members of it and their relation to its funds and assets, we are not able to perceive, and there has not been pointed out to us, any substantial difference between the instant cases and Robbins v. Insurance Co. and Eberhard v. Insurance Co., supra. Every contention as to the aggregation of the several claims, and as to the amount of the trust fund determining the amount in controversy, is concluded by these decisions, and nothing would be gained by repeating the reasons and conclusions stated in them.

The decree is reversed, with directions to dissolve the injunction and dismiss the suits for want of jurisdiction.

CHIN AH YEIT ex rel. CHIN GUEY

GUAN.

(Circuit Court of Appeals. First Circuit. October 26, 1926.)

No. 2010.

1. Habeas corpus 94.

On habeas corpus to avoid deportation, court cannot try issue whether alien is son of American citizen, without first determining that there was some defect in proceedings before Commissioner of Immigration.

2. Habeas Corpus 113(13)-In habeas corpus proceedings on behalf of alien, Circuit Court of Appeals held justified in itself determining jurisdictional question not consider ed by District Court.

On appeal, after District Court has improperly tried issue whether alien was son of American citizen, without first determining that there was some defect in proceedings before Commissioner of Immigration, held, in view of record, Circuit Court of Appeals should itself determine such jurisdictional question, instead of sending case back to District Court for that

purpose.

Appeal from the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.

Habeas corpus proceeding by Chin Ah Yeit, on the relation of Chin Guey Guan, against John P. Johnson, United States Commissioner of Immigration. From an order discharging relator, the Commissioner appeals. Order setting aside writ discharged, and relator remanded to custody.

George R. Farnum, Asst. U. S. Atty., of Boston, Mass. (Harold P. Williams, U. S. Atty., of Boston, Mass., on the brief), for appellant.

William Shaw McCallum, of Boston, Mass., for appellee.

a fair and impartial hearing before the Board of Special Inquiry; had been denied the right to be present at the hearing of witnesses before the said Board of Special Inquiry; that he did not understand the English language, and that he was questioned through an interpreter whose dialect he did not understand; and that the board acted in an arbitrary and capricious manner. The prayer was for a writ against the Commissioner or the captain of the steamship Prince George.

The writ was allowed forthwith, and the serving officer's return shows that it was served on the captain of the Prince George. There was no return made by the Commissioner of Immigration, as there should have been.

When the case came on for hearing in December, 1925, the court proceeded to try the issue whether the relator was the son of an American citizen. On that issue the petitioner and his alleged son and other witnesses were called and examined, without any presentation of the record in the Immigration Department, or any determination by the court of any illegality or unfair proceedings in that department. Near the close of the hearing the transcript of the record in the Immigration Department was admitted, apparently for such bearing, if any, as it might have upon the question of whether the relator was in fact the son of the petitioner. [1] But the court was without jurisdiction to try that issue of fact, unless and until it had first determined that there was some defect in the proceedings. Johnson v. Kock Shing (C. C. A.) 3 F. (2d) 889; Johnson v. Kock Tung (C. C. A.) 3 F. (2d) 889; Ng Lung v. Johnson (C. C. A.) 8 F. (2d) 1020;

ANDERSON, Circuit Judge. The underlying and controlling issue in this habeas corpus case is the familiar one-whether the relator, Chin Guey Guan, is the son of the petitioner, Chin Ah 'Yeit, who is conceded to be an American citizen. The record is unusually defective and the preliminary jurisdictional question seems to have been overlooked by the court below.

Under date of July 29, 1925, the alleged father filed a petition setting up that Chin Guey Guan was his son, and was unlawfully and forcibly restrained of his liberty by the appellant, the Commissioner of Immigration, who was about to place him aboard a ship for deportation. The petition also al

285; Yick How v. Johnson (C. C. A.) 12 F. (2d) 1023; Goon Hen Soo v. Johnson (C. C. A.) 13 F. (2d) 82; Chin Gim Wing v. Johnson (C. C. A.) 13 F. (2d) 124. [2] Under these circumstances, the next question is whether the case should be sent to the court below for a trial of the jurisdictional question, or whether on the present record this court should determine that question. We think the latter is the proper course. Examination of the record discloses no illegality or unfairness in the proceedings before the immigration authorities. The applicant for admission is a man over 30 years old. There was plenary evidence of such inconsistent statements by the alleged father concerning his marriage and children as to warrant the immigration authorities in