Opinion of the court. vessels approached each other and came in collision. The steamer struck the schooner. The answer admits" that the said schooner was cut half in twain, and not altogether in twain, as charged;" a difference of small moment, however, inasmuch as it is admitted that she sank in consequence of the collision. The sinking was immediate. The crew were rescued by the steamer and landed at Fortress Monroe. The answer alleges that the collision was caused by the fault of the schooner in porting her helm and coming suddenly under the bow of the steamer when it was too late for the latter to avoid her. The District Court adjudged the steamer to have been solely in fault, and decreed accordingly. The respondents appealed to the Circuit Court. There the decree of the District Court was reversed and the libel dismissed. The libellants appealed to this court, and the decree of the Circuit Court is thus brought before us for review. This is a simple case. No searching analysis of the testimony is necessary to enable us to find the proper conclusious. It was the duty of the steamer to keep out of the way of the schooner. She had at command all the means to do so. There was ample sea-room, calm weather and water, abundant light, and no other vessel in proximity on her larboard or starboard side. None other is mentioned as in sight. It was the duty of the steamer to see the schooner as soon as she could be seen, to watch her progress and direction, to take into account all the circumstances of the situation, and so to govern herself as to guard against peril to either vessel. The steamer was grossly in fault in approaching so near the schooner and at so high a rate of speed. This was the source of the disaster that followed. The only fault imputed to the schooner is that almost at the moment of the collision she ported her helm. This fact is not satisfactorily established by the testimony. The proof is that the captain said so after reaching the steamer. He denies it. The mate says, "I kept my course steadily north by west." He Opinion of the court. was cross-examined by the respondents' counsel, but no question was asked as to this point. There is no other evidence upon the subject. What was deemed due to porting the helm may have been the effect of the wind after the helmsman fled from his post. If the fact were as claimed it would not mitigate the fault of the steamer. Nor can the desertion of the helmsman at such a time have that effect. The peril was immediately impending. The safety of the vessel and the lives of the crew were at stake. A moment later the collision occurred. The helmsman in his flight was thrown down by the shock and broke his leg. The vessel sank, and the crew would have gone down with her but for the aid of the steamer. If in an emergency so sudden and so alarming an order were given which should not have been given, or an act were done which should not have been done, the law regards it an error and not a fault, and holds the offending vessel to be the cause, and liable as if it had not occurred. We think the decree of the District Court was in all things correct, and should have been affirmed. After the case was appealed to the Circuit Court, and before the hearing there, the respondents took testimony showing that the schooner had been raised, repaired, and put in good condition. At whose instance and at what cost this was done, and by what right those in possession claimed to hold her, are not shown; nor is it alleged or proved that she was ever tendered back to the appellants. The appellees insist that the facts disclosed entitle them to have the decree of the Circuit Court affirmed, and rely upon the case of The Baltimore* as an authority to that effect. This is a mistaken view of the subject. In the case of The Baltimore the libel alleged a total loss. The answer expressly denied it. There the sinking was in the river Potomac. The water was shoal. The masts projected eighteen feet above its surface, and the position of the bull was clearly discernible. The * 8 Wallace, 378. Opinion of the court. vessel could have been easily raised and repaired. Here the libel alleges substantially a total loss, and the answer substantially admits it. No point to the contrary was raised or suggested. The schooner was sunk in the Chesapeake Bay, where the water was five fathoms deep. It is clear, from the proofs, that she could not have been raised and repaired without a large expenditure of time and money. The case of The Baltimore has, therefore, no application to the case before us. This subject has been under consideration upon two occasions in the English admiralty court. In The Empress Eugenie, the owner had raised and repaired the vessel. The cost of the repairs exceeded the original value of the vessel, and this might have been ascertained before the repairs were commenced. It was held that the measure of damages was the value of the ship before the collision, with interest from the date when the cargo would, in the ordinary course, have been delivered, together with the cost of raising and the cost of placing the ship in the dock for inspection, less the value of the wreck as raised. It was said "that it was a mistake to have repaired her at all, and that it would have been better to have abandoned her from the first." In the case of The Columbus,† that vessel had sunk the fishing-smack Tryall. The owner of the Columbus raised the smack and carried her into Rye Harbor. Notice of this was given to the owner of the smack, with an intimation that the owner of the Columbus was ready to deliver her up and would not be responsible for any further damage or expense that might be incurred by her remaining unrepaired in the harbor of Rye. It does not appear whether she was repaired or not. Dr. Lushington said: "The rule which I consider it incumbent upon this court to follow is this, that if a vessel is not merely run into and partially damaged, but is actually sunk at sea, it is not incumbent upon the owner of that vessel to go to any expense whatever for the purpose * 1 Lushington, 189. † 3 W. Robinson, 161. Opinion of the court. of raising her." IIe said further, that the owner of the smack "was not bound to repair her, and might have left her lying in the port," and that the proper course would have been to apply to the court for an order that the smack be sold and the proceeds brought in to abide the result of the suit. The Columbus was held liable for the full value of the smack as if there had been a total loss; but it was also held that the owner of the Columbus might still apply for an order to sell the smack, and that "the proceeds of such sale will be his own property." Whether, if the smack had been repaired and then tendered back, her owner would have been bound to receive her, is a point not touched upon, and which it is not necessary here to consider.* Upon the authority of The Columbus, it is clear that the steamer is liable for the full value of the schooner at the time of her loss. We think that case lays down the proper rule. There may be interests and complications touching the schooner in relation to which we are not advised and which are not represented in this litigation. We cannot, therefore, order her to be sold and the proceeds to be paid to the owners of the steamer. But, where there is an abandonment by the assured to the assurer, the title of the property passes to the latter. So, where in an action of trespass or trover there is a recovery of the full value of the property to which the action relates, the title of the plaintiff is transferred ipso facto to the defendant. In analogy to the principle of these cases, we adjudge that the decree to be pronounced against the steamer shall bar any further claim to the schooner on the part of the appellants, and that their title shall be thereby remitted to the appellees. DECREE REVERSED, and the case remanded to the Circuit Court with directions to enter a decree IN CONFORMITY TO THIS OPINION. * 1 Parsons's Shipping and Admiralty, 548. Statement of the case. MORGAN'S EXECUTOR V. GAY. 1. Where a citizen of one State as indorsee of inland bills, drawn or aocepted by a citizen of another-the plaintiff claiming through the indorsement of the payee, or of the payce and subsequent indorsers—sues the drawer or acceptor, in the Circuit Court, the eleventh section of the Judiciary Act requires that the citizenship of such payee, or of such payee and subsequent indorsers, be alleged to be different from that of the defendant. It is not enough to allege that the plaintiff is a citizen of one State and the defendant of another. 2. It is not competent for a Circuit Court to determine, without the intervention of a jury, an issue of fact in the absence of the counsel of the party and without any written agreement to waive a trial by jury. ERROR to the Circuit Court for the District of Louisiana; the case being thus: The eleventh section of the Judiciary Act, which gives jurisdiction to the Circuit Courts of suits "between a citi zen of the State where the suit is brought and a citizen of another State," enacts, nevertheless, that no Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action, iu favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made; except in cases of foreign bills of exchange." This statute being in force, Gay, as indorsee of three several inland bills of exchange, drawn or accepted by one Morgan, in his life, sued his executor upon them. Two of the bills were indorsed by the payees, and the third by its payee and by other indorsers. The plaintiff in his petition described himself as a citizen of Kentucky, and described the defendant as a citizen of Louisiana, but said nothing about the citizenship of the payees of the bills, nor, in the case of that one indorsed by subsequent indorsers, of the citizenship of these. The defeudant pleaded the statute of limitations, general issue, &c. The cause was called for trial, the plaintiff being repre |