Where two vessels at anchor collide, and one is at fault for want of sufficient anchors, and the other for want of proper watch, damages should be equally divided.

Approved in The Prudence, 212 Fed. 541, holding seaman injured can collect full damages from vessel at fault, notwithstanding contributory negligence; The Ciudad De Reus, 185 Fed. 395, 107 C. C. A. 447, dividing damages where both ships at anchor failed to have lookout; The Director, 180 Fed. 609, dividing damages between ship failing to stop on seeing imminent danger and vessel anchored on forbidden place; The City of Birmingham, 138 Fed. 559, 71 C. C. A. 115, holding dredge anchored at night near center of narrow channel liable for collision with passing steamer; The North Star, 106 U. S. 22, 27 L. Ed. 93, 1 Sup. Ct. 46, where entire loss occurring by fault of both parties in collision was divided; The Max Morris, 137 U. S. 9, 34 L. Ed. 587, 11 Sup. Ct. 31, applying rule where passenger on vessel was injured partly through negligence of officers and partly through his own; The Nereus, 23 Fed. 458, where both vessels were found at fault for confusing whistles, etc., and loss divided; The Ogemaw, 32 Fed. 925, holding both vessels at fault in collision between a tow and vessel at anchor; The Anerly, 58 Fed. 795, dividing loss between two barges and a ship held negligent for not letting both anchors go; The Clara, 102 U. S. 203, 26 L. Ed. 146 (affirming 13 Blatchf. 511, Fed. Cas. 2787), dismissing libel brought by owners of vessel where failure to keep watch on latter was cause of collision; The Oliver, 22 Fed. 851, holding similarly where vessel was sunk by reason of its failure to have either lights or watch; The Erastus Corning, 25 Fed. 574, holding collision due solely to want of proper light. on anchored vessel.

Liabilty of vessels and their owners for injuries caused by collision.
Note, 45 Am. Dec. 53.

Duty of vessel at anchor. Note, 75 Am. Dec. 605.

Duties required of two or more vessels on navigable waters to avoid
injuring each other and their occupants. Note, 121 Am. St. Rep.
49, 51.

Liability for collision with moored or anchored vessel. Note, 23
E. R. C. 648.

11 Wall. 172-178, 20 L. Ed. 179, SUSQUEHANNA ETC. R. R. & COAL CO. V. BLATCHFORD.

Jurisdiction of Circuit Court cannot be entertained, unless each of several plaintiffs is competent to sue, and each of several defendants liable to be sued, under requirements of eleventh section of Judiciary Act of 1789.

VII-16

Approved in Cuebas y Arredondo v. Cuebas y Arredondo, 223 U. S. 388, 56 L. Ed. 480, 32 Sup. Ct. 277, holding District Court of Porto Rico has no jurisdiction over mortgage foreclosure where one of three defendants is United States citizen; Sweeney v. Carter Oil Co., 199 U. S. 257, 50 L. Ed. 180, 26 Sup. Ct. 55, two citizens of different States may sue in Federal court citizen of another State; Tuller v. Illinois Cent. R. Co., 213 Fed. 282, holding Federal court cannot retain part of suit based on non-Federal ground; H. G. Baker & Bro. v. Pinkham, 211 Fed. 732, holding all defendants need not be of diverse citizenship; Coal etc. Ry. Co. v. Reherd, 204 Fed. 883, 123 C. C. A. 155, holding citizenship of receiver of insolvent partnership and not partners determines Federal jurisdiction; Laubscher v. Fay, 197 Fed. 880, holding personal representation of deceased person is one on whom jurisdiction depends; McEldowney v. Card, 193 Fed. 482, 485, holding averment that plaintiff was "resident" is not sufficient-citzenship must be shown; Southern Pac. Co. v. Arlington Heights Fruit Co., 191 Fed. 108, 111 C. C. A. 581, and Ladew v. Tennessee Copper Co., 179 Fed. 248, both holding want of jurisdiction apparent on face of bill may be reached by motion to dismiss; Ware-Kramer Tobacco Co. v. American Tobacco Co., 178 Fed. 120, holding joining of common-law count will not afford jurisdiction where none existed before; Pittsburgh S. & N. R. Co. v. Fiske, 178 Fed. 71, 101 C. C. A. 560, holding where, pending suit, plaintiff transferred interest to corporation of same citizenship of defendant, Federal court loses jurisdiction; Johnson v. St. Louis, 172 Fed. 41, 18 Ann. Cas. 949, 96 C. C. A. 617, holding in suit by trustee, citizenship of cestui que trust does not affect jurisdiction; Slater Trust Co. v. Randolph-Macon Coal Co., 166 Fed. 178, holding where party avoiding service is merely to perform some ministerial act, Federal jurisdiction will not be ousted; Caylor v. Cooper, 165 Fed. 764, holding where one defendant trustee would oust Federal court, allegation must be made that said defendant was requested to join and refused; Kuchler v. Greene, 163 Fed. 98, holding where one plaintiff, not possessing diverse citizenship, is joined merely to perform ministerial act, jurisdiction of Federal courts will not be ousted; McClelland v. MeKane, 154 Fed. 165, refusing to entertain jurisdiction where, in suit by stockholders, corporation is indispensable party and without diverse citizenship; Anderson v. Bassman, 140 Fed. 11, denying Federal jurisdiction over suit to enjoin diversion of water by means of irrigation ditches, where one of defendants is citizen of same state as plaintiff; Jenkins v. York Cliffs Imp. Co., 110 Fed. 809, denying jurisdiction, one defendant a citizen and resident of wrong district; Lengel v. American Smelting etc. Co., 110 Fed. 21, dismissing suit where some of indispensable defendants reside outside district where suit brought; Stemmler v.

M'Neill, 102 Fed. 661, dismissing suit, amount involved between each defendant and complainant not greater than two thousand dollars; Sheltman v. Taylor's Committee, 116 Va. 764, 82 S. E. 699, holding residence of committee in charge of affairs of lunatic governs as to jurisdiction; Case of the Sewing-Machine Cos., 18 Wall. 575, 21 L. Ed. 919, 12 Am. Rep. 546, denying jurisdiction where one defendant corporation and plaintiff were residents of same State; Gardner v. Brown, 21 Wall. 41, 22 L. Ed. 527, holding similarly in action to foreclose, where defendant trustee and plaintiff were residents of same State; Peninsular Iron Co. v. Stone, 121 U. S. 633, 30 L. Ed. 1020, 7 Sup. Ct. 1011, dismissing bill where citizens of Ohio were parties on both sides of controversy; Smith v. Lyon, 133 U. S. 319, 33 L. Ed. 636, 10 Sup. Ct. 304, denying jurisdiction where two plaintiffs and defendants were residents of three different States; Hanrick v. Hanrick, 153 U. S. 195, 38 L. Ed. 686, 14 Sup. Ct. 856, and Patterson v. Chapman, 13 Blatchf. 397, Fed. Cas. 11,042, where one defendant and plaintiffs were residents of same State; Bybee v. Hawkett, 6 Sawy. 599, 5 Fed. 6, holding under act of 1875 cause removable where controversies in suit were all between citizens of different States; Case v. Douglas, 1 Dill. 300, Fed. Cas. 2491, denying jurisdiction, where petition failed to show that all the plaintiffs having joint interest were residents of same State; Brigham v. Luddington, 12 Blatchf. 241, Fed. Cas. 1874, holding, if party defendant were brought in, jurisdiction would be defeated for want of diverse citizenship; Saginaw etc. Co. v. Saginaw, 28 Fed. 531, holding jurisdiction could not be acquired where plaintiff and principal defendant were residents of same State; Gann v. Northeastern R. R. Co., 57 Fed. 420, where plaintiffs jointly interested were not all citizens of same State; Tug River Coal etc. Co. v. Brigel, 67 Fed. 628, 14 C. C. A. 577, denying jurisdiction, where plaintiff and some defendants were residents of same State, and residence of some parties unknown; Excelsior Pebble Phosphate Co. v. Brown, 74 Fed. 324, 20 C. C. A. 428, holding parties plaintiff not entitled to sue in Federal court under acts of 1887 and 1888; New Orleans Canal etc. Co. v. Recorder of Mortgages, 27 La. Ann. 292, where parties plaintiff and defendants were citizens of Louisiana; Robb v. Parker, 3 S. C. 69, denying jurisdiction where citizen of New York sued citizen of Michigan in Federal court of South Carolina.

Distinguished in Stewart v. Mitchell, 172 Fed. 909, denying Federal jurisdiction over controversy between two factions of local church; Fisk v. Henarie, 13 Sawy. 44, 32 Fed. 422, holding, under act of 1887, case removable where a "controversy" involved in suit was between parties of diverse citizenship, without regard to other parties; Removal Cases, 100 U. S. 469, 25 L. Ed. 598, holding case removable where only

controversy was between citizens of different States, without reference to form of pleadings; Sands v. Smith, 1 Dill. 293, Fed. Cas. 12,305, sustaining jurisdiction, under acts of 1839, 1866 and 1867, although defendants were citizens of different States; Froment v. Duclos, 30 Fed. 385, holding jurisdiction of Federal courts over consuls and viceconsuls exclusive.

Limited in Pond v. Vermont etc. R. R. Co., 12 Blatchf. 290, Fed. Cas. 11,265, holding that rule does not prevent citizen of third State from appearing voluntarily as party defendant.

Executors and trustees come within rule as to clear averment of the jurisdictional diversity of citizenship in the Federal courts, and jurisdiction is not defeated by the fact that the parties whom they represent may be disqualified.

Approved in Ingersoll v. Coram, 211 U. S. 361, 53 L. Ed. 227, 29 Sup. Ct. 92, holding administratrix suing on behalf of heir is not governed by United States Comp. Stats. 1901, p. 503, regarding suits by assignees of choses in action; Allen-West Commission Co. v. Brashear, 176 Fed. 122, holding trustees for foreclosure of mortgage are antagonistic to mortgagors, and should be made parties plaintiff in foreclosure proceedings; Stephens v. Smartt, 172 Fed. 475, holding in suit to prevent merger of two churches, controversy was between officers and not church corporation; Donovan v. Wells Fargo & Co., 169 Fed. 368, 22 L. R. A. (N. S.) 1250, 94 C. C. A. 609, holding where proper grounds are shown, State court must order removal; Monmouth Inv. Co. v. Means, 151 Fed. 165, 80 C. C. A. 527, holding where ousted executor was within jurisdiction of Federal courts, new appointee has same jurisdiction; In re E. T. Kenney Co., 136 Fed. 455, beneficial interest of assignors in net proceeds of claims assigned to committee to settle affairs, after administering trust, are not provable in bankruptcy; Hunter v. Robbins, 117 Fed. 922, allowing treasurer of corporation to maintain suit in own name against predecessor in interest; Cincinnati etc. R. Co. v. Thiebaud, 114 Fed. 922, 52 C. C. A. 538, allowing administrator to sue, though beneficiaries reside in same State as defendant; Virginia etc. Power Co. v. Fisher, 104 Va. 135, 136, 51 S. E. 203, bondholder cannot bring suit to foreclose mortgage securing railroad bonds, unless trustee refuses to do so; Rice v. Houston, 13 Wall. 67, 20 L. Ed. 484, holding administrator changing his residence to State other than that of defendant entitled to sue in Federal court; Knapp v. Troy etc. R. R. Co., 20 Wall. 123, 124, 22 L. Ed. 331, determining jurisdiction by residence of trustees of mortgage bonds and not by residence of bondholders; Gardner v. Brown, 21 Wall. 41, 22 L. Ed. 527, Donohoe v. Mariposa L. & M. Co., 5 Sawy. 167, Fed. Cas. 3989, and Teal v. Walker, 23 Fed. Cas. 822, all denying jurisdiction where a defendant trustee and plaintiff were resi

ROSES

dents of same State; Thayer v. Life Assn. of America, 112 U. S. 720, 28 L. Ed. 866, 5 Sup. Ct. 357, and Mitchell v. Tillotson, 11 Biss. 327, 12 Fed. 738, both holding similarly where trustee was indispensable party; New Orleans v. Gaines, 138 U. S. 607, 34 L. Ed. 1106, 11 Sup. Ct. 431, holding subrogated creditor entitled to stand upon his own citizenship in determining jurisdiction; Weed Sewing Machine Co. v. Wicks, 3 Dill. 266, Fed. Cas. 17,348, upholding jurisdiction in action brought by "real party in interest"; Farlow v. Lea, 8 Fed. Cas. 1018, holding receiver of Ohio corporation, resident of Massachusetts, could sue citizen of Ohio in Circuit Court; Graham v. Boston, 14 Fed. 763, applying rule where shareholder brought suit in behalf of himself and other shareholders; In re M'Clean, 26 Fed. 50, testing jurisdiction by citizenship of guardian; Harper v. Norfolk etc. R. R. Co., 36 Fed. 104, and Goff's Admr. v. Norfolk etc. R. R. Co., 36 Fed. 301, both sustaining jurisdiction where administrator and defendant were citizens of different States; Wade v. Sewell, 56 Fed. 131, holding that insolvency discharge operated through trustee upon all beneficiaries; Bangs v. Loveridge, 60 Fed. 965, and Miller v. Sunde, 1 N. D. 4, 44 N. W. 302, both holding citizenship of administrator test of jurisdiction; Shipp v. Williams, 62 Fed. 6, 10 C. C. A. 247, and Vimont v. Chicago etc. R. R. Co., 64 Iowa, 517, 17 N. W. 33, 64 Iowa, 524, 21 N. W. 12, both holding, where trustee was disqualified, nonresident beneficiary could not confer Federal jurisdiction; Pennington v. Smith, 78 Fed. 409, 24 C. C. A. 145, determining jurisdiction by citizenship of testamentary trustee; Seccomb v. Wurster, 83 Fed. 860, holding taxpayer suing by virtue of New York statute, and having requisite citizenship, entitled to sue in Federal court; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 321, 2 L. R. A. 637, 19 N. E. 625, holding nonresident appointed administrator does not become in any sense resident of place where appointed; Popp v. Cincinnati etc. Ry. Co., 96 Fed. 467, upholding foreign administrator's suit for death of his testator, notwithstanding beneficiaries' disability; M'Donald v. Seligman, 81 Fed. 755, holding bill ancillary and citizenship of parties immaterial; Robertson v. Van Cleave, 129 Ind. 220, 15 L. R. A. 70, 26 N. E. 900, holding, where trustee is in court, decree binds beneficiaries as to trust property; Jones v. McPhillips, 82 Ala. 109, 2 South. 471, arguendo.

Distinguished in In re Woodbury, 98 Fed. 839, holding suits by trustees must be brought in district and division where bankrupt could suc; Dodd v. Ghiselin, 27 Fed. 406, holding residence of minor and not of guardian determines jurisdiction; Reinach v. Atlantic etc. R. R. Co., 58 Fed. 38, holding, where cestui que trust is himself complainant, jurisdiction is not ousted by citizenship of trustee.