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3. SAME-BURDEN OF PROOF.

When the evidence does not explain (to a degree sufficient to fix responsibility) the cause of the loss of a vessel, the case should be decided upon the general principles governing such cases. Non-delivery of goods shipped raises the presumption of negligence on the part of the carrier, and, in an action for them, the burden is on the carrier to show good excuse for the non-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 proceeded down the river without accident to near Cairo, Illinois, when, in passing across the point behind Willow bar, one of the barges, the Moore, was run aground with such force 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's Point, 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 she was observed to be leaking, and, in spite of the efforts made by the 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 Gordon & Gomilla, bring this libel to recover the one-half the cargo, less freight.

Thomas Gilmore, John A. Gilmore, Samuel L. Gilmore, Joseph C. Gilmore, and O. B. Sansum, for libelant.

John A. Campbell and J. Ward Gurley, Jr., for claimant. PARDEE, J. The evidence in this case shows that the barge Sallie Pearce was apparently seaworthy when she started on her voyage. She had been repaired at large expense about one year previous.

The defense that she was landed at Bird's Point against "an unknown and unseen root of a tree," which, by the barge pressing against with her side, "caused her side to be pressed in and produced the leak from which the barge was sunk," is entirely unsupported 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 her 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 Bird's Point, the presumption is

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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 course. 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. 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 does 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 decided upon 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 January 1, 1881, instead of from indicial demand and for all costs.

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GRIBBLE v. PIONEER PRESS Co.

(Circuit Court, D. Minnesota. February 5, 1883.)

1. REMOVAL OF CAUSE-CITIZENSHIP.

Where there is reason to doubt the existence of jurisdictional facts, the parties may be examined upon the question, and the court may direct the proper pleadings to be filed to raise the issues involved in such question.

2. SAME-REMAND.

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. 3. ALIEN-NATURALIZATION.

An alien naturalized under the laws of the United States is a 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 alien. 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 immigrated into 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 behaved as a man of good moral v.15,no.10-44

character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same, and that he has in all things fully complied with the laws of the United States in such case made and provided, and having declared on his solemn oath before the said court that he would support the constitution of the United States, and that he did absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentatė, state, or sovereignty whatever, and particularly to the queen of Great Britain, of whom he was before a subject: whereupon the court admitted the said Joseph Gribble to become a citizen of the United States, and ordered all the proceedings aforesaid to be recorded by the clerk of said court, which was done accordingly.

"In testimony whereof I have hereunto set my hand and affixed the seal of the said court at the city of Pittsburgh, this second day of October, Anno Domini 1838, and of the sovereignty and independence of the United States of America the sixty-third. [Original Seal of Court.]

"T. L. MCMILLAN, Clerk.

"Duplicate of original issued by me this fourteenth day of September, A. D. 1882. A. H. ROWARD, Jr., Clerk."

No further testimony was offered by either party, and the matter was submitted.

John B. Brisbin, for plaintiff.

W. D. Cornish and C. D. O'Brien, for defendant.

NELSON, J. The evidence under the plea is satisfactory, and sufficient to show that the plaintiff is by virtue of law a citizen of the United States and of the state of Minnesota.

Objection is made to the admissibility of the certificate of naturalization of the plaintiff's father offered in evidence. The evidence of the plaintiff alone, uncontradicted, without this authenticated record, is sufficient to authorize the court, under the act of congress of March, 1875, to dismiss or remand the case, but in my opinion the certified copy is admissible. The act of congress (Rev. St. § 905, p. 171) providing for the mode of authenticating records of state courts is not exclusive, and states can adopt any other method. In the state of Minnesota it is enacted that "the records and judicial proceedings of any court of any state or territory of the United States shall be admissible in evidence in all cases in this state when authenticated by the attestation of the clerk having charge of the records of such court, with the seal of such court annexed." Young's St. (Minn.) § 54, p. 800. The document offered meets the requirements of this statute and is admissible in evidence.

It is without doubt the right and duty of the court to remand a case removed from a state court if it ascertains in any way that it was not removable under the law. This court cannot be obliged to proceed

with the trial of a cause with the knowledge that it is in fact not within its jurisdiction, and that either party may at any moment, by raising the question of jurisdiction on the record, put an end to the proceedings. If it were otherwise, the parties to such an action. might, by suppressing the facts with respect to citizenship, require the court to proceed until they have discovered its views of the law, and then, if not satisfied, might interpose a motion to dismiss or remand. See 104 U. S. 209. The court cannot permit any practice which will make possible such an experiment. If the judge has reason to doubt the existence of the jurisdictional facts, he has a perfect right to examine the parties upon that question, or to direct a plea in abatement to be filed and heard in order to settle at the outset that question.

The proof in this case shows that the plaintiff was the son of a person who was duly naturalized under the laws of the United States, and a minor dwelling therein at the time of the naturalization of his father. He thus became, by virtue of law, a citizen. Rev. St. § 2172, p. 380.

The plaintiff and defendant being citizens of the state of Minnesota, this court has no jurisdiction of the cause removed. Judgment on the plea will be entered in favor of the plaintiff, and in furtherance of justice it is remanded to the Ramsey county district court, with costs to be paid by the defendant.

MATTHEWS v. MURCHISON and others.

(Circuit Court, E. D. North Carolina.)

1. RAILROADS-REORGANIZATION-DISSOLUTION-BONDHOLDERS BOUND BY ACQUI

ESCENCE.

A bondholder of a former organization has no standing in chancery to dissolve the present organization of a railroad company, for which his agent had voted his bonds, it was alleged, in excess of authority, and to enforce a different plan, where it appears that he had known of what his agent was doing, but had not dissented, and that he had accepted his share of the bonds of the new organization, had offered to buy and sell, and had brought suit for them. Such conduct ratified the act; or, inducing others to believe he had acquiesced in the organization, worked estoppel.

2. SAME-CAPACITY TO OWN SHARES-OBJECTION-BY WHOM TO BE RAISED. A bondholder of one railroad company is not the proper person to object tc the right of another road to own shares of the stock of the former. If it exceeded its corporate power in purchasing, they belong to the vendor; if it only could not hold, the state incorporating is the party offended.

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