Beardsley v. Tappan. been a privileged one; but that the publicity given to it by recording the libellous words in a book, to which others had access, and to whom they were communicated, though standing in the relation of clerks, deprived the communication of its otherwise privileged character. This is no doubt a very important question, and one involving, in its practical operation, whichever way it may be decided, interests of very great magnitude. On the one hand, to legalize these establishments in the manner and to the extent used by the defendant, is placing one portion of the mercantile community under an organized system of espionage and inquisition for the benefit of the other, exposed, from the very nature of the organization, to perversion and abuse; and, on the other, to refuse to legalize them, may be restricting injuriously the right of inquiring into the character and standing of the customer asking for credit in his business transactions. I am strongly inclined to think, that, if the establishments are to be upheld at all, the limitation attached to them by the Court below is not unreasonable, to wit, that it must be an individual transaction, and not an establishment conducted by an unlimited number of partners and clerks. The principle upon' which privileged communications rest, which, of themselves, would otherwise be libellous, imports confidence and secrecy between individuals, and is inconsistent with the idea of a communication made by a society or congregation of persons, or by a private company or a corporate body. The other objections in the case are technical in their character, not involving the merits. I have looked into them, and am of the opinion that they are not available to the defendant. New trial denied. United States v. 25,000 Segars. THE UNITED STATES vs. 25,000 SEGARS. The Treasury circular of September 2d, 1867, respecting the shares of informers, in cases of forfeiture under the Internal Revenue laws, does not apply to a case where the proceeds of the forfeiture had been received by the Marshal prior to the issuing of that circular. The right of the informer became fixed, on the receipt by the Marshal of the money, to receive the amount to which, by the then existing regulation, he was entitled. (Before BENEDICT, J., Eastern District of New York, October 14th, 1867.) BENEDICT, J. This motion presents the question, whether the Treasury Circular of September 2d, 1867, respecting the shares of informers, in cases of forfeiture under the Internal Revenue laws, is applicable to a case where the proceeds of the forfeiture had been received by the Marshal prior to the issuing of that Circular. The same question has recently been considered by Judge Blatchford, in the District Court for the Southern District of New York, in the case of The United States v. Eight barrels of Distilled Spirits, and I concur with him in the conclusion, that the right of the informer became fixed on the receipt by the Marshal of the money, and that the subsequent circular of the Secretary of the Treasury can have no effect to reduce the amount to which, under the then existing regulation, the informer was entitled. The distribution in this case will, therefore, be made in accordance with that view. Caldwell v. Harding. JOHN W. CALDWELL vs. DAVID J. HARDING AND ZIBA NICKERSON, AS ADMINISTRATORS, &c., OF JOHN PAYNE, DECEASED. No action can be maintained against an executor or administrator, founded on a debt due from the estate of the deceased, unless he has been duly qualified by a probate tribunal in the State or county where the suit is brought. An action at law will not lie in this Court, against an administrator appointed by a probate Court in Massachusetts, but who had never taken out letters of administration in New York, to recover a debt due from the deceased to the plaintiff. (Before SHIPMAN, J., Southern District of New York, October 15th, 1867.) THIS was an action at law, to recover a debt due to the plaintiff from John Payne, deceased. The defendants had been appointed administrators of Payne, by a Court of Probate in Massachusetts, and had never taken out letters of administration in New York. The case was tried by the Court without a jury. Edward D. McCarthy, for the plaintiff. Charles F. Blake, for the defendants. SHIPMAN, J. No action can be maintained against an executor or administrator, founded on a debt due from the estate of the deceased, unless he has been duly qualified by a probate tribunal in the State and county where the suit is brought. (Vaughan v. Northup, 15 Peters, 1, 6; Story on Conflict of Laws, sec. 513; Williams v. Storrs, 6 Johns. Ch., R., 353; Kerr v. Moon, 9 Wheaton, 565; Peale v. Phipps, 14 Howard, 368.) The facts in this case are a complete answer to any suit against the defendants in the character in which they are sued, Kelly v. Harding. founded on the cause of action here involved, and are, therefore, a bar to this suit. There must be a judgment for the defendants, but without costs. JOHN J. KELLY vs. DAVID J. HARDING AND ZIBA NICKERSON, AS ADMINISTRATORS, &c., OF JOHN PAYNE, DECEASED. This Court has no jurisdiction of a suit where one party is a citizen of Georgia and the other party is a citizen of Massachusetts. The jurisdiction of this Court must appear affirmatively by the record, and the want of jurisdiction need not be pleaded. This Court has no jurisdiction whatever over controversies between parties, all of whom, plaintiffs as well as defendants, are citizens of States other than that in which the suit is brought. (Before SHIPMAN, J., Southern District of New York, October 15th, 1867.) SHIPMAN, J. The plaintiff, in his declaration, alleges, that he is a citizen of the State of Georgia, and that the defendants are citizens of the State of Massachusetts. This allegation excludes the jurisdiction of this Court. The fact that a plea to the jurisdiction was not put in by the defendant, instead of a plea to the merits, does not help the case. One of the parties must be a citizen of the State where the suit is brought, and there must be a positive averment of that fact on the record. But, instead of that, the averment is exactly the reverse, and in advance shows that the Court is without authority to try the cause. It is hardly necessary to say, that this is not like a case where the Court has jurisdiction over the parties, after the service of process on the defendant, or a case where, though no service has been made on the defendant, Wheeler v. Helmbold. he comes in and submits himself to the jurisdiction of the Court, thus waiving a provision of the statute enacted for his protection. This Court has no jurisdiction whatever over controversies between parties, all of whom, plaintiffs as well as defendants, are citizens of States other than that in which the suit is brought. This suit is therefore coram non judice, and a judgment upon its merits would be a nullity. Let an order be entered dismissing the suit for want of jurisdiction, without costs. FREDERICK G. WHEELER vs. HENRY T. HELMBOLD AND BENJAMIN F. CURTIS. IN EQUITY. In an agreement between H. and W., it was provided: (1.) That W. should have the option of taking 1,875 shares of stock, in a certain Company, and certain presses, on the following terms and conditions, namely, the payment of $3,000 in 30 days, $1,000 in 60 days, $1,000 in 90 days, $7,000 in 9 months and $3,000 in 12 months; (2.) That, on the payment of $3,000, a cotton compress was to be delivered to W., and, on the payment of $150, in addition, a plantation press was to be delivered to him; (3.) That, on payment of any sum of $1,000, or upwards, a pro rata amount of the whole of the stock proposed to be delivered to W. by the contract, and a pro rata amount of 2,500 other shares of stock in the same Company, owned by W., but held by H. as collateral security, should be delivered to W., as rapidly as such payments were made: Held, that W. had the option, under the agreement, to pay, at any time within the times and amounts limited, the sum of $1,000, and receive the proportion of stock thereto belonging, and that, on the tender of any such $1,000, the pro rata proportion of shares belonging to it became, in Equity, the property of W. Held, also, that the refusal by II. to accept a tender when made, did not confer on W. a right to any more shares than the pro rata proportion represented by the sum tendered, and that, as to all sums not tendered within the times limited by the agreement, W. forfeited his option in regard to the pro rata portion of shares represented by such sums. A claim by W. against H., for damages for delaying to assign a patent, under an agreement to assign it, and for discouraging parties from buying the patented |