Berlin & Son vs. Jones.

cuit courts shall have original cognizance of all suits of a civil nature * * when the suit is between a citizen of the state where the suit is brought and a citizen of another state." The citizenship of plaintiffs in the state of New York is distinctly averred, and the question presented is, whether it is sufficiently averred that defendant is a citizen of the state of Alabama.

When the jurisdiction depends upon the character of the parties, it must be positively averred upon the record. Bingham v. Cabot, 3 Dall., 382; Abercrombie v. Dupuis, 1 Cranch, 342; Wood v. Wagnon, 2 id., 9; Capron v. Van Noorden, 2 id., 126; Brown v. Keene, 8 Peters, 112; Jackson v. Ashton, 8 id., 148; Michaelson v. Denison, 3 Day, 294.

In the case in 3 Dallas there was no averment whatever as to the citizenship of the defendant, and on that ground judg ment was reversed.

In Abercrombie v. Dupuis, 1 Cranch, the plaintiff was averred to reside in the state of Kentucky, and the defendant was called "Charles Abercrombie, of the district of Georgia," there being no averment either that the plaintiff was a citizen of Kentucky, or the defendant of Georgia.

In Wood v. Wagnon, 2 Cranch, the plaintiff is described as a citizen of Pennsylvania, and the defendant as "James Wood of the state of Georgia."

In both the cases last named the objection was taken that it did not appear that the plaintiff and defendant were citizens of different states, and upon that ground the judgment was reversed upon the authority of Bingham v. Cabot, 3 Dallas, supra.

In Michaelson v. Denison, 3 Day, the plaintiff was described as Charles Michaelson of Bass End in the Island of St. Croix, a foreign subject, viz., a subject of the King of Sweden. LIVINGSTON, J., said: "By the constitution of the United States the judicial power may extend to cases between citizens of a state and foreign subjects, but congress in the provision of the judicial act under that clause has restricted it to cases in which an "alien" is a party. He must be stated to be an alien in express terms. The court will take nothing by implication.

Berlin & Son vs. Jones.

Besides it is a non sequitur that because a man is a subject of a foreign power he is an alien; he may be at the same time a naturalized citizen of this state."

In Brown v. Keene, 8 Peters, 112, the petition averred that the plaintiff, Richard R. Keene was a citizen of the state of Maryland, and that the defendant, Brown, was a citizen or resident of the state of Louisiana, holding his fixed and perma nent domicil in the parish of St. Charles. The judgment was reversed because the petition did not positively aver that the defendant was a citizen of the state of Louisiana, but in the alternative that he was a citizen or resident, and because consistently with this averment he might be either.

The decisions of this court, MARSHALL, C. J., goes on to say, require that the averment of jurisdiction should be positive, that the declaration should state expressly the fact on which the jurisdiction depends.

It will be observed in these cases the judgments were reversed. 1. Because there was no averment whatever touching the citizenship of the plaintiff or of the defendant, or

2. Because the averment of the declaration as to one of the parties was, that he was of a named state, without distinctly alleging citizenship therein, or

3. That the fact of citizenship was stated in the alternative, or 4. That a party plaintiff was averred to be a foreign subject when the jurisdiction of the court extended only to aliens.

It seems clear that the case at bar is not to be controlled by either of the cases cited. Here citizenship is distinctly averred, but it is alleged to be citizenship in the southern district of Alabama, and not of the state of Alabama, and the precise question presented is, whether under the rules of pleading, an averment that a party is a citizen of the southern district of Alabama is a sufficient averment of his citizenship in the state of Alabama?

It is a rule of pleading that it is not necessary to state matter of which the court takes judicial notice. Therefore, it is unnecessary to state matter of law, whether of the common law or public statute law. By a public act the court knows judicially

Berlin & Son vs. Jones.

that the southern district of Alabama is in the state of Alabama. What the court notices judicially is taken for granted, or as if set out at length in the pleading. So that this pleading must be considered precisely as if the averment objected to was that the defendant is a citizen of the southern district of Alabama, which is part of the state of Alabama. Taking the averment as it stands in the declaration, in connection with the other fact which the court assumes judicially to be the fact, I think the citizenship of the defendant in the state of Alabama, is sufficiently averred.

I am strengthened in this view by the remarks of MARSHALL, C. J., in the case of Jackson v. Ashton, 8 Peters, supra.

In that case the citizenship of the plaintiff was well averred; the only question was, Whether that of the defendant as a citizen of Pennsylvania was also well averred? He was described simply as William E. Ashton, of the city of Philadelphia.

The Chief Justice said: "The only difficulty which could arise as to the dismissal of the bill presents itself upon the statement that "the defendant is of Philadelphia." This it might be answered shows that he is a citizen of Pennsylvania.

"If this question were new, the court might decide otherwise; but the decision of the court in the cases which have heretofore been before it has been expressed upon the point, and the bill must be dismissed for want of jurisdiction."

I think the fair inference from this language is that if the averment had been that the defendant was a citizen of Philadelphia, the court would have held the averment good, taking ju dicial notice of the fact that Philadelphia was in the state of Pennsylvania. One thing is clear, that the court thought that the decisions on this question had already been pushed too far. We are asked to go a step beyond any decision heretofore made, and say that the averment that a party is a citizen of the southern district of Alabama, is not a sufficient averment that he is a citizen of the state of Alabama.

In some of the cases which I have examined, the party is alleged to be a citizen of the district of Georgia, for instance. No

VOL. I.-41

Delano vs. Cargo of the Gallatin.

objection seems to have been taken to this form of averment, but it was considered good both by court and counsel.

The citizenship of defendant in the state of Alabama is, I think, sufficiently averred, and plea that he was not a citizen of Alabama would be a good traverse to the averment of the declaration.

Demurrer overruled.

DELANO VS. CARGO OF THE GALLATIN.

1. To make a case for general average, the property saved and the property sacrificed must be exposed to a common danger; the sacrifice of a part must contribute to the saving of the residue, and the sacrifice must be voluntary.

2. There can be no contribution for damage caused by the common danger to which both ship and cargo are exposed.

ADMIRALTY APPEAL.

The facts are stated in the opinion of the court.

Mr. Edward S. Dargan, for libellants.

Messrs. Peter Hamilton and T. A. Hamilton, for claimants.

WOODS, Circuit Judge. The facts were these: On the 17th of April, 1868, the ship Albert Gallatin was lying at anchor in the bay of Mobile, about twenty-five miles below the city of Mobile. She was loading with a cargo for Liverpool, and had on board 3,511 bales of cotton, most of which had been stowed, but 209 bales were still on deck, and 160 other bales were on the way to the ship on a lighter, but had not yet reached her. Delano, the master was not on board, but the ship was in charge of Russell, the first mate.

On the morning of April 17, between 2 and 3 o'clock, the ship was struck by lightning, and, immediately after, her cargo was discovered to be on fire in the after hold, under the cabin floor. The crew immediately commenced pumping water on the fire through the cabin floor, but without effect, to put it out. The mate then ordered holes to be cut in the ship's

Delano vs. Cargo of the Gallatin.

side to sink her. This effort had not succeeded when salving vessels came alongside, and the ship and cargo were surrendered by the mate to the salvors. They at once cut large holes in the ship's side, and, by means of steam pumps, forced large quantities of water into the hold, by which, after some hours, the ship was sunk. A large part of her hull still remained out of water. The salvors continued to pump water upon the ship, and succeeded in extinguishing the fire.

The salvors then removed the cotton, pumped out the ship, towed her to an anchorage, when she was raised by the salvors without expense to her owners.

The ship and cargo were libelled for salvage. The ship was delivered to the master on stipulation. He sold her, and the owners received the proceeds of the sale, and contributed nothing to pay the decrees for salvage. All costs and expenses of the litigation, the handling of the property, and the salvage decrees were paid exclusively from the proceeds of the sale of the cargo, the ship contributing nothing.

The cargo was insured by underwriters, who have paid the losses, and waived abandonment of the cargo, and they have received the proceeds of the sale of the cargo, after paying the salvage decrees, costs, etc. There remains, however, in the hands of A. J. Ingersoll & Co., defendants, the sum of $19,257.47, being the proceeds of a portion of the cargo which was sold after the proceeds of a former sale had been seized by order of the admiralty court.

After the sale of the ship, she was taken to New Orleans and repaired. It appears from the evidence of the witnesses, Vallette and Marcy, that the repairs put on her, made necessary by reason of the fire, exceeded $33,000, while the damage produced by the scuttling and sinking was a mere trifle. Marcy testified that "the scuttling produced no injury to the ship. Twenty-five dollars would have covered all the repairs caused by the scuttling." This witness is corroborated in this evidence by Joseph Loach. Vallette testifies: "I saw no damage from the scuttling of the ship. The damage was caused by the fire. It took a little over two months to repair