hearsay admissible to prove pedigree; United States v. Morris, 1 Curt. 48, F. C. 15,815, admitting evidence that the person was treated as a slave; Brown v. Crandall, 11 Conn. 95, holding, as between parties, general reputation inadmissible to prove partnership; Farner v. Turner, 1 Iowa, 59, refusing to admit a book-entry not shown to be contemporaneous; dissenting opinion, State v. Marshall, 137 Mo. 478, 36 S. W. 620, majority permitting prosecutrix to testify as to her age, though no question of pedigree in issue; Hamilton v. West St. L. & P. Ry. Co., 21 Mo. App. 158, refusing to admit hearsay, where declarant was not dead; McEwen v. Portland, 1 Or. 305, 306, rejecting evidence of reputation to support title; likewise Gregory v. Baugh, 4 Rand. 620, refusing to admit evidence of belief in neighborhood that defendant's ancestors were entitled to freedom; Gregory v. Baugh, 2 Leigh (Va.), 680, 695, court dividing as to whether hearsay admissible to prove female ancestor an Indian.

1 Wheat. 9-19, 4 L. 23, THE SAMUEL.

Practice. Under statute, deposition de bene esse admissible only when witness is unattainable, p. 16.

Cited in Whitford v. Clark County, 119 U. S. 524, 30 L. 500, 7 S. Ct. 307, holding if party offering deposition has knowledge of his power to get witness to trial, deposition will be excluded; Stegner v. Blake, 36 Fed. 184, holding statute providing for deposition de bene esse in civil cause includes equity cases.

Admiralty pleading. It is sufficient that an information so set forth the offense as clearly to bring it within the statute, p, 15.

Cited in The Merino, 9 Wheat. 401, 6 L. 121, holding it sufficient if information bring offense clearly within the statute: United States v. Weed, 5 Wall. 69, 18 L. 533, holding the information must substantially state the offense; The Confiscation Cases, 20 Wall. 110, 22 L. 324, holding technical niceties are not required in revenue cases; United States v. Schooner Paryntha Davis, 1 Cliff. 535, F. C. 16,003, holding it is sufficient to bring offense within words of statute; likewise in United States v. Arms, 24 Fed. Cas. 863; United States v. Three Hundred and Ninety-six Barrels, etc., 28 Fed. Cas. 122, declaring general averment that statute has been violated insufficient; The Idaho, 12 Sawy. 159, 29 Fed. 189, holding it is. sufficient if the act be described in the words of the statute under which the proceedings take place; United States v. Hook, 26 Fed. Cas. 370, to support informer's claim, it is sufficient to show his Information caused the recovery. Cited, arguendo, in American Ins. Co. v. Johnson, Blatchf. & H. 15, F. C. 303.

Admiratly jurisdiction.- Prosecutions under non-importation laws belong to, p. 14.

Cited in United States v. Wiltberger, 5 Wheat. 115, n., 5 L. 48,

ANN

in note on admiralty jurisdiction; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 389, 12 L. 485, declaring admiralty has jurisdiction where specie carried by boat was lost by fire; The Belfast, 7 Wall. 638, 19 L. 270, holding contracts of affreightment to be within exclusive jurisdiction of admiralty; The Eagle, 8 Wall. 26, 19 L. 370, holding act extending jurisdiction of District Courts to seizures on waters inoperative.

Admiralty.- Court being in doubt on a libel in admiralty, ordered further proof, p. 19.

Cited in Garland v. Davis, 4 How. 154, 11 L. 917, declaring this practice to be confined to admiralty and refusing to allow a repleader; The Venezuela, 52 Fed. 875, 1 U. S. App. 314, receiving new material evidence, not intentionally withheld in District Court; Vanderheyden v. Reid, 1 Hopk. Ch. 469, allowing issue of insanity to be tried by jury in appealed case.

Appeal and error.- Certificate of Circuit Court clerk that a deposition was filed after trial outweighs the circumstance that it appears as part of the record, and it is liable to the same exceptions in the Supreme Court as though offered there for the first time, pp. 15, 16.

Deposition de bene esse.—It is not just ground for, that the witness is on an American gunboat, liable to be ordered away at any time, p. 16.

1 Wheat. 20-24, 4 L. 25, THE OCTAVIA.

Admiralty practice. When onus probandi rests on claimants, a forfeiture will be pronounced, unless defense is clear of any reasonable doubt, p. 24, note.

Cited in The Ocean Bride, 1 Hask. (Fox Dec.) 340, F. C. 10,404, holding, when importation is proved, burden rests with claimants to establish their innocence.

Admiralty jurisdiction, extent of, p. 23, note.

Cited in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 389, 12 L. 485, holding action for specie on vessel burnt in port within admiralty jurisdiction; The Belfast, 7 Wall. 638, 19 L. 270, holding statute authorizing contracts of affreightment to be enforced in rem through State courts unconstitutional; The Wave, Blatchf. & H. 240, F. C. 17,297, holding admiralty has jurisdiction where tide ebbs and flows, though within body of a State.

1 Wheat. 25-45, 4 L. 27, THE MARY AND SUSAN.

Title passes en delivery to carrier, where goods are shipped in pursuance of orders from consignee, p. 39.

Cited and rule applied in Pullman Car Co. v. Metropolitan Ry. Co., 157 U. S. 109, 39 L. 638, 15 S. Ct. 507, holding title to part

passed when agents inspected, to rest when put on cars; The Sally Magee, Blatchf. Pr. 386, F. C. 12,260, holding cargo became stamped with character of consignees from inception of voyage; Harrison v. Hixson, 4 Blackf. 228, holding bill of lading is only prima facie evidence of title in consignee; Southern Express Co. v. Craft, 49 Miss. 496, 19 Am. Rep. 9, 10, permitting consignor to sue carrier; Woolsey v. Bailey, 27 N. H. 219, title to goods ordered passes on delivery to ship.

1 Wheat. 46-61, 4 L. 32, THE MARY AND SUSAN.

Enemy. Person domiciled in enemy's country is an enemy, and his property is liable to capture on the high seas, p. 55. Cited in The Sarah Starr, Blatchf. Pr. 76, F. C. 12,352, confiscating property of neutral domiciled at enemy's port.

Statute.- No notice of passing of laws is necessary, unless made so by the law itself. But it is otherwise with orders issued by the executive, prohibiting capture of certain vessels, and they do not bind privateers and others until actually communicated. pp. 57, 58.

66

99

Cited in Lorent v. Insurance Co., 1 Nott & McCord, 505, holding words from and after are exclusive of the date of the statute, hence policy dated same day embargo laid is good; Strafford Bank v. Cornell, 2 N. H. 327, holding judgment is presumed to have been entered on last day of term.

Privateers.- Fact that commander is an alien enemy does not invalidate a capture made by him, pp. 56, 57.

Miscellaneous citations.- Cited in East Hartford v. Pitkin, 8 Conn. 402, but not in point.

1 Wheat. 62-74, 4 L. 37, THE RUGEN.

Enemy. An American subject concerned in business in enemy's country is, as to that, an enemy, and his property liable to forfeiture, p. 74.

Cited in Griswold v. Waddington, 16 Johns. 496, holding partnership dissolved by war between partners' countries; United States v. One Hundred and Twenty-nine Packages, 27 Fed. Cas. 286, holding sailing with intention to carry on trade, is a sufficient overt act to Forfeit goods; United States v. One Hundred Barrels, 27 Fed. Cas. 293, 297, confiscating goods of one trading with enemy.

Admiralty.- Muniments of ownership of vessel by neutral, if only colorable and concealing American ownership in fact, will be disregarded, p. 67.

ANN

1 Wheat. 75-84, 4 L. 40, THOMPSON v. GRAY.

Sales.- Title passes when the article is selected and set aside from others of same description, pp. 83, 84.

Cited in Scott v. King, 12 Ind. 208, holding that the admeasurement and setting apart of the corn, and payment of money completed sale; Baldwin v. Commonwealth, 11 Bush (Ky.), 428, 429, holding that the execution of bond by the bidder with surety cannot be regarded as a condition precedent to vesting right of property.

Sales.-Upon a contract of sale stipulating that security for purchase money be given on delivery of the goods, title passes, in absence of express intent to the contrary, p. 84.

1 Wheat. 85-91, 4 L. 42, ANDERSON v. LONGDEN.

Surety. Sureties upon the bond of an agent of a corporation are liable thereon to the corporate directors to whom it was executed although they have gone out of office before the breach occurs, p. 91.

Cited in Savings Soc. v. Wennerhold, 81 Cal. 534, 22 Pac. 922, holding liability of surety, though secretary is appointed by directors, elected for one year, will continue through the term of his actual holding; Louisiana State Bank v. Ledoux, 3 La. Ann. 676, is to the same effect; Hoxie v. Weston, 19 Me. 329, holding requirement of statute that bond be given to assessor, does not prevent obligee from suing; Sumner v. Steward, 2 N. H. 41, holding only the party in interest may release; State v. Wells, 61 Tex. 563, holding surety liable, until bond of successor is approved.

1 Wheat. 91-95, 4 L. 44, NEW ORLEANS v. WINTER.

Jurisdiction.- Federal courts have not jurisdiction of suit between citizen of territory and citizen of a State, p. 94.

The following citing cases affirm and apply this principle: Scott v. Jones, 5 How. 377, 12 L. 197, holding a territory is not a State; Marshall v. Railroad Co., 16 How. 340, 14 L. 964, holding court has jurisdiction, though one party be a corporation; Barney v. Baltimore, 6 Wall. 287, 18 L. 827, holding court had no jurisdiction where one party was citizen of District of Columbia; Mansfield, etc., Ry. Co. v. Swan, 111 U. S. 381, 28 L. 463, 4 S. Ct. 511, holding necessary citizenship must appear in the record; Konigsberger v. Mining Co., 158 U. S. 47, 39 L. 891, 15 S. Ct. 754, assuming jurisdiction where territory became a State, pending appeal; Hooe v. Jamieson, 166 U. S. 397, 398, 41 L. 1050, 17 Sup. Ct. 597, holding court without Jurisdiction where plaintiff was of District of Columbia; Glover v. Shepperd, 11 Biss. 576, 15 Fed. 836, holding petition describing them as residents of certain States bad; Prentiss v. Brennan, 2 Blatchf

164, F. C. 11,385, refusing to take jurisdiction of suit between aliens: Cissel v. McDonald, 16 Blatchf. 153, F. C. 2,729, holding a citizen of District of Columbia is not a citizen of a State; as also in The Land Co. v. Elkins, 22 Blatchf. 204, 20 Fed. 546, and Watson v. Brooks, 8 Sawy. 321, 13 Fed. 543, all holding similarly; Darst v. Peoria, 13 Fed. 564, holding a territory is not a State; Leddon v. Virginia, etc., Co., 36 Fed. 8, holding District of Columbia is not a State; Strasburger v. Beecher, 44 Fed. 213, holding a territory is not a State; Dunton v. Muth, 45 Fed. 394, holding when defendants were citizens of a territory at beginning of action, it could not be removed on admission of territory; Snead v. Sellers, 66 Fed. 372, 30 U. S. App. 8. holding citizen of territory cannot sue citizen of State in Federal courts; Suesenbach v. Wagner, 41 Minn. 109, 42 N. W. 925, giving same faith to judgments of territorial courts as to State courts: dissenting opinion, Newcomb v. Smith, 2 Pinn. 143, majority holding rights given to citizens of territory are same as those of States. Distinguished in The Ullock, 9 Sawy. 642, 19 Fed. 212, construing "State" in pilot regulation to include territory; as also in Neil v. Wilson, 14 Or. 414, 12 Pac. 812.

Jurisdiction - Federal courts.-All parties on each side must have jurisdictional capacity. p. 95.

The following citing cases affirm and apply this doctrine: Dissenting opinion, McNutt v. Bland, 2 How. 22, 11 L. 164, majority holding the fact that governor and one defendant are of same State will not oust jurisdiction; Peninsular Iron Co. v. Stone, 121 U. S. 632, 633, 30 L. 1020, 7 S. Ct. 1010, 1011, dismissing suit where a plaintiff and defendant were from same State; Smith v. Lyon, 133 U. S. 319, 33 L. 636, 10 S. Ct. 304, where plaintiffs were of different States; Merchants' Co. v. Insurance Co., 151 U. S. 384, 38 L. 204, 14 S. Ct. 372, where plaintiffs were a citizen and an alien; Hubbard v. Railroad Co., 3 Blatchf. 87, F. C. 6,818, holding cause not removable where plaintiffs were citizens of different States; Case v. Douglas, 1 Dill. 300, F. C. 2,491, partners, plaintiffs, must all be of same State; Smith v. Rines, 2 Sumn. 347, 350, F. C. 13,100, declaring that all defendants must join in the petition for removal; Kirkpatrick v. White, 4 Wash. 598, F. C. 7,850, where four incorporators were of same State as plaintiff. Cited in Norton v. Railway Co., 32 Fed. 876, dismissing suit where actual plaintiff and defendant were of same State; Excelsior, etc., Co. v. Brown, 74 Fed. 324, holding Circuit Court has no jurisdiction where only one defendant is a resident of that district; Kane v. Indianapolis, 82 Fed. 772, holding one defendant cannot have cause removed, unless others could; Binney's Case, 2 Bland Ch. 148, holding citizenship of all individuals of a corporation must be of same State; Bryant v. Rich, 106 Mass. 192, 8 Am. Rep. 315, holding Federal courts had no jurisdiction where any of the plaintiffs and defendants were of same State; as

ANN