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clerk must add to the sum so awarded interest thereupon from the decedent's death, and include it in the judgment."

The action was removed by the defendant into the circuit court of the United States for the Southern district of New York, on the ground that the plaintiff was a citizen of New Jersey and the defendant a citizen of Rhode Island. The answer put in in the circuit court contains a denial in the prescribed form, covering the allegation of the complaint that the defendant received Clare on the Narragansett for the purpose of conveying him therein as a passenger from New York city to Stonington, for a reasonable compensation paid to it by Clare. It also denies the negligance alleged, and denies all liability to the plaintiff. It also sets up that it had, by proper proceedings in the district court of the United States for the Southern district of New York, taken the benefit of the statute of the United States for the limitation of the liability of ship-owners, in respect to the Narragansett, by a transfer of its interest in her to a trustee appointed by that court. At the trial before a jury, a verdict was, by direction of the court, rendered for the sum of $5,000, on the 20th of April, 1885; the interest was, under the statute of New York, computed by the clerk at the sum of $1,522.50; the plaintiff's costs were taxed at $78.25; and a judgment was rendered for the plaintiff for the damages, interest, and costs, amounting in all to $6,600.75.

At the trial, the plaintiff called as witnesses the master of the Narragansett, and the pilot and the engineer of the Stonington, for the purpose of showing negligence on the part of the Stonington. The plaintiff also called as a witness one Fisher, who testified as follows: "In June, 1880, I resided in Jersey City. I knew Charles C. Clare; he was a friend of mine. On the Sunday following the 11th of June, 1880, I went to Stonington and found the body of Charles C. Clare, and brought the same to Jersey City for burial. What first led me to go to Stonington was newspaper reports, and then information coming to me, that Mr. Clare had lost his life by this accident. I found his body in the lower part of a furniture establishment, which was being temporarily used as a morgue." The defendant then called as a witness a steam-boat captain, and examined him on the general question as to whether the Stonington, at the speed at which she was. running, was going at a moderate speed in a fog, under the requirement of rule 21, section 4233, Rev. St., which provides that "every steam-vessel shall, when in a fog, go at a moderate speed." The defendant also called as a witness the bow watchman of the Stonington. After both sides had rested, the plaintiff moved for a direction to the jury to find a verdict for the plaintiff for $5,000. The defendant then moved that the court direct the jury to find a verdict for the defendant, because there was no evidence that the intestate went on or in the Naragansett, the evidence being that he was dead, but there being no evidence as to how he died. The court then suggested to the counsel for the plaintiff that he had better prove, if he could, that the deceased was on the Naragansett. The plaintiff was then sworn as a witness, and testified that, on the afternoon of June 11, 1880, she crossed over, with her son Charles, by a ferry-boat, to New York, to take him to his father, and left him with his father on the New York side of the ferry bridge, and did not herself go outside of the ferry or to the Naragansett. The plaintiff then called the son Charles as a witness, who testified that on that afternoon he went with his father on board of the Naragansett, and went out on her, and was on her at the time of the collision; that his father was with him shortly before the collision; and that he did not see his father after the collision. The defendant then asked the court to direct the jury to find a verdict for the defendant, on the ground that there was no evidence in the case that the father and son went as passengers on the boat, or that they had bought a ticket, or that they had any room, or that there was any contract made between the parties; that there was no evidence that the intestate lost his life in consequence of the accident; that he was seen dead in Stonington; but that there

was no evidence that any life was lost on the Narragansett, or that anything happened to the intestate. The court remarked that it thought that the evidence then in in the case was sufficient, and that it must deny the defendant's motion, and grant the plaintiff's motion. The defendant then asked the court to direct a verdict for the defendant, on the ground that there was no evidence that the intestate lost his life by reason of the collision, or by the negligence of the defendant. The court denied the motion, and the defendant excepted. The defendant conceded that, if the plaintiff could recover at all, the damages were $5,000. The defendant then asked to go to the jury on the questions (1) whether the plaintiff's intestate had lost his life by reason of the collision of the two vessels and (2) whether the defendant or its servants had been guilty of any negligence in the navigation of the Stonington, contributing to the collision. The court denied each of these requests, and to each denial the defendant excepted. The jury then returned a verdict for the plaintiff, by direction of the court, for $5,000. The defendant has brought a writ of error to review the judgment. There has been no appearance or argument or brief in this court for the defendant in error, but the case has been orally argued and a brief submitted for the plaintiff in error. A citation was issued and duly served on the attorney for the plaintiff.

We think that the court erred at the trial in refusing to grant the motion to direct a verdict for the defendant on the ground that there was no evidence that the plaintiff's intestate lost his life by reason of the collision or by the negligence of the defendant, and in refusing to grant the requst of the defendant to go to the jury on the question whether the plaintiff's intestate had lost his life by reason of the collision. The only evidence of the death of the intestate was that of the witness Fisher, who testified that he saw the dead body of the intestate in Stonington, on the Sunday following the 11th of June, 1880, which was the 13th of June, 1880. There is no evidence to sustain the allegation of the complaint that the intestate was drowned as a consequence of the collision, or as to what caused his death, or as to how his body came to be found in Stonington. The question as to whether the intestate lost his life in consequence of the collision was, at least, one for the jury, and the evidence was not sufficient to warrant the direction of a verdict for the plaintiff on that point.

We express no opinion on the question of negligence in the navigation of the Stonington contributing to the collision, or on the question of her rate of speed in the fog. Different testimony on these questions may be given on a new trial, from that which was given on the trial now under review. Nor do we express any opinion on the question of the sufficiency of the evidence to show, as alleged in the complaint, that the intestate was a passenger on the Narragansett, for a reasonable compensation paid by him to the defendant. The judgment of the circuit court is reversed, and the case is remanded to that court, with a direction to award a new trial.

BLACKLOCK et al. v. SMALL et al.
(April 23, 1888.)

1. COURTS-FEDERAL JURISDICTION-SUITS BY ASSIGNEES.

The obligee in a bond secured by a mortgage assigned the bond to a trustee in trust for his children. Plaintiffs, the cestuis que trustent, a number of years afterwards, brought suit in the circuit court of the United States against the obligor, alleging payment of the bond by him to the the trustee in Confederate currency, and prayed that the bond, which had been surrendered to him, be redelivered to them, and that the pretended payments thereon, and the satisfaction of the mortgage which had been entered, be declared null and void. Plaintiffs were residents of Georgia, and defendant obligor of South Carolina, but the obligee, at the time of the assignment of the bond, and when suit was brought, was a resident of South Carolina. Held, that the court had no jurisdiction, under act March 3, 1875, c. 137, § 1, (18 St. 470,) providing that no circuit or district court shall "have cogni

zance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law-merchant and bills of exchange.

2. SAME-CLASSIFICATION OF PARTIES.

The court had no jurisdiction from the further fact that one of the cestuis que trustent, who was of the same citizenship as defendant obligor, had been made defendant in the suit, but in her answer joined in the prayer of the bill, and asked that the bond and mortgage be declared valid in the hands of the trustee for the benefit of herself and plaintiffs, showing the suit to be one substantially by her and for her benefit.

3. COSTS-ON APPEAL-REVERSAL.

Costs will be awarded against appellants in the supreme court, though the case is reversed, when the reversal takes place on account of their fault in invoking the jurisdiction of the circuit court when they had no right to resort to it.

Appeal from the Circuit Court of the United States for the District of South Carolina.

Suit in equity to have payments made upon a bond, and the satisfaction of the mortgage securing it, declared null and void, and for redelivery of the bond. Bill dismissed, and plaintiffs appeal.

James Lowndes and, B. H. Rutledge, for appellants. James Simons and Samuel Lord, for appellees.

BLATCHFORD, J. This is a bill in equity, filed on the 8th of October, 1879, in the circuit court of the United States for the district of South Carolina, by Emma Jane Blacklock and Mary Blacklock, citizens of Georgia, against Jacob Small, a citizen of South Carolina, Alexander Robertson, a citizen of North Carolina, and Helen Robertson Blacklock, a citizen of South Carolina. The substance of the allegations of the bill is that on the 20th of March, 1860, John F. Blacklock, the father of the plaintiffs, owning a house and lot in the city of Charleston, in the state of South Carolina, sold and conveyed it to the defendant Small, who, on the same day, gave back to Blacklock a bond and mortgage; the mortgage covering the house and lot, and being given to secure the payment on the bond of the sum of $10,600, by three equal and successive annual installments, the first one payable on the 20th of March, 1861, with interest from the date of the bond and mortgage, payable annually. That the purchase money of the house and lot was $16,000, of which $5,400 was paid in cash at the time. That Blacklock, the mortgagee, after receiving from Small, on the 19th of March, 1861, $742 for one year's interest, at 7 per cent., on the bond, indorsed on it the following assignment: "For value received, I hereby assign, transfer, and set over all my right, title, and interest in this bond to Alexander Robertson, in trust for children of J. F. Blacklock. J. F. BLACKLOCK." That the assignee was the defendant Robertson, and the "children of J. F. Blacklock" were the plaintiffs and the defendant Helen Robertson Blacklock. That Small pretended to pay the bond by making payments to Robertson as follows: On the 19th of October, 1861, $3,600 on account of principal, and $147 for interest; on the 4th of April, 1862, $2,000 on account of principal, and $490 for interest; and on the 10th of April, 1862, the balance of the principal and interest,-making such payments in the treasury notes of the Confederate States. That, upon the receipt thereof, Robertson satisfied the mortgage, and delivered up the bond to Small. That, at the time of the creation of the trust in the hands of Robertson, the children of Blacklock were infants. That in May, 1861, Blacklock went with the children to England, and remained there until the close of the war. That Robertson, in receiving such payments in the treasury notes of the Confederate States, violated his duty, and was guilty of a breach of trust. That Small, in attempting to pay the debt in an illegal currency, with full notice of the trust, had not paid the debt. That the satisfaction of the mortgage was void, and its lien was still subsisting, and that Small was still liable for the amount due on

the bond, with interest. The prayer of the bill is that the payment of the bond in Confederate treasury notes may be disallowed; that the satisfaction of the mortgage may be annulled, and the mortgage be re-established, and declared a subsisting lien on the land; that Small may be ordered to deliver up the bond and mortgage to the plaintiffs; and that the plaintiffs may have a decree for the payment to them by Small of the amount due, and for a sale of the mortgaged premises. Small appeared in the suit, and interposed a plea that the court had no jurisdiction of the cause, because the plaintiffs, as well as himself, were citizens of South Carolina when the bill was filed. On issue joined on this plea, it was overruled, and Small put in an answer to the bill, as did also Robertson. The defendant Helen Robertson Blacklock put in an answer, admitting the allegations of the bill, and averring that Robertson held the bond and mortgage as a trustee for herself and her sisters, in whom was the real and actual interest therein; that the attempted payment by Small was without legal effect; that the bond and mortgage were still the property of the defendant and her sisters; and that she joins in the prayer of the bill that the pretended payments of the bond by Small to Robertson, and the satisfaction entered on the mortgage, be declared null and void, that the bond and mortgage be declared valid and subsisting obligations of Small to Robertson as the trustee of a trust for the benefit of the defendant and her sisters, and that Small be decreed to pay the defendant and the plaintiffs the amount of money secured by the bond and mortgage. Under replications to the answers, proofs were taken by the several parties. The case was heard on its merits, and a decree was made dismissing the bill, with costs. From this decree the plaintiffs and the defendant Helen Robertson Blacklock have appealed to this court.

It appears by the proofs in the record that John F. Blacklock, the assignor of the bond, was, at the time of the assignment, a citizen of South Carolina, and continued to be such until this suit was cominenced, and that the defendant Small was, when this suit was commenced, a citizen of South Carolina. Under these circumstances, the provision of the first section of the act of congress of March 3, 1875, c. 137, (18 St. 470,) applies to this case. That provision is as follows: "Nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant, and bills of exchange." The present suit is a suit against Small, founded on contract, namely, his bond and mortgage in favor of the plaintiffs, who claim only under the assignment made by their father, John F. Blacklock, to the defendant Robertson. John F. Blacklock could not have prosecuted this suit in the circuit court of the United States for the district of South Carolina to recover on the bond and mortgage against Small, if he had made no assignment of the bond to Robertson, for the reason that he and Small were not citizens of different states when the suit was commenced, but were both of them at that time citizens of South Carolina. In answer to this objection, it is contended by the appellants that this suit is not to be regarded as a suit founded on the contract of Small, to recover thereon, but is to be regarded as a suit for the delivery of the bond and mortgage by Small to the plaintiffs, founded on their wrongful detention, and that the rest of the relief prayed by the bill is ancillary and incidental; and the cases of Deshler v. Dodge, 16 How. 622, and Bushnell v. Kennedy, 9 Wall. 387, are cited as authorities; but they do not apply. The case of Deshler v. Dodge was an action of replevin, brought by a citizen of New York against a citizen of Ohio, in the circuit court of the United States for the district of Ohio, to recover possession of a package of bank-bills. The title of the plaintiff to the contents of the package was derived by assignment from corporations of Ohio. This court held that the action could be maintained, although the assignors could not have brought the

suit, and that the suit was not one to recover the contents of a chose in action within the meaning of section 11 of the judiciary act of September 24, 1789. In Bushnell v. Kennedy it was said, though not determined, because not necessary to that case, that the provision of the eleventh section of the judiciary act of 1789 did not apply to a naked right of action founded on a wrongful act or a neglect of duty, to which the law attached damages. In the present case the bill is clearly one for a decree against Small for the amount of the bond, and for a foreclosure of the mortgage and a sale of the mortgaged premises.

There is another difficulty in the case, on the question of jurisdiction. The bond was a unit; the mortgage was a unit; and the assignment of the bond by Blacklock to Robertson in trust for the children of Blacklock was a unit. The bond cannot be enforced against Small, nor can the mortgaged premises be sold in favor of the two plaintiffs alone. The relief asked in the suit must necessarily be for the benefit of the defendant Helen Robertson Blacklock, as well as for the benefit of the plaintiffs, especially as, by her answer, she ranges herself on the side of the plaintiffs as against Small, joins in the prayer of the bill, and asks that the payment of the bond and the satisfaction of the mortgage be declared void, and that the bond and mortgage be declared valid in the hands of Robertson, as trustee, for the benefit of herself and the plaintiffs, and that Small be decreed to pay to herself and the plaintiffs the amount of money secured by the bond and mortgage, with interest. The suit is therefore shown to be one substantially by and for the benefit of Helen Robertson Blacklock, and the proofs show that, at the time of the commencement of the suit, she was, and has since then always continued to be, a citizen of South Carolina, of which state Small was and is a citizen. Ayres v. Wiswall, 112 U. S. 187, 5 Sup. Ct. Rep. 90; Thayer v. Life Ass'n, 112 U. S. 717, 5 Sup. Ct. Rep. 355; Railroad Co. v. Mills, 113 U. S. 249, 5 Sup. Ct. Rep. 456; Railroad Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. Rep. 735. The circuit court ought, therefore, to have dismissed the bill for want of jurisdiction, and not upon the merits. For this error its decree is reversed, with costs in this court against the appellants, because the reversal takes place on account of their fault in invoking the jurisdiction of the circuit court when they had no right to resort to it, (Railroad Co. v. Swan, 111 U. S. 379, 388, 389, 4 Sup. Ct. Rep. 510,) and the case is remanded to the circuit court, with a direction to dismiss the bill for want of jurisdiction, without costs of that court.

LAWRENCE et al. v. MERRITT, Collector.
(April 23, 1888.)

CUSTOMS DUTIES-CLASSIFICATION-TISSUE PAPER.

*

Tissue paper for making letter-press copies of written matter falls within the clause imposing a duty of 35 per centum ad valorem "on all other paper not otherwise provided for," and not within the clause providing for "paper, * * printing, unsized, used for books and newspapers exclusively, 20 per centum ad valorem." Rev. St. U. S. § 2504, Schedule M.

In Error to the Circuit Court of the United States for the Southern District of New York.

Edwin B. Smith, for plaintiffs in error. Sol. Gen. Jenks, for defendant in

error.

MILLER, J. This is a writ of error to the circuit court of the United States for the Southern district of New York. The plaintiffs in error, Benjamin and Phineas Lawrence, brought suit in the court below against Edwin A. Merritt, the former collector of the port of New York, for the recovery of an alleged excess of duties levied by him and paid by them upon an importation of what is called "tissue paper." Schedule M of section 2504 of the Revised Statutes

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