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executed sale of specific chattels the seller is not liable for defects in the quality of the article in the absence of fraud or express warranty; where the purchaser is not deceived by any fraudulent misrepresentations or concealment on the part of the seller, and the buyer demands no warranty, the law presumes that he exercised his own judgment, and the doctrine of caveat emptor applies. A principal exception to this rule is found in cases of executory contracts for the manufacture and sale of goods in futuro, where from the nature of the case no examination of the article is possible; or in cases where the contract is such as to show that the duty and responsibility of ascertaining and judging of the quality are thrown upon the seller, as where he undertakes to furnish an article for a particular specified purpose.

In Story on Sales, sec. 371, it is said: "Upon an executory contract to manufacture an article or to furnish it for a particular use or purpose, a warranty will be implied that it is reasonably fit and proper for such purpose and use, as far as an article of such a kind can be."

To the same effect is 1 Pars. Cont. 585 (side); Benj. Sales, 645, and such warranty includes not only the workmanship, but also the quality and soundness of the material of which the thing is made, as well as all latent defects not known to the purchaser, whether known to the seller or not. 1 Pars. Cont. 586; Benj. Sales, 644 et seq.

If therefore this were the case of an ordinary purchase of a chattel from the manufacturer, or if it had been an order on appellant to manufacture the boilers in question without specifying the kind or quality of material to be used in their construction, but the order had been given in sole reliance on the judgment and skill of appellant as to the quality of the material, the law would have implied a warranty both as to the workmanship and the soundness of the iron actually used; aud this brings us to the inquiry as to how far appellant's liability as upon an implied warranty is affected by the circumstances that the kind of iron of which the boilers were to be made was specified in appellant's proposal. The proposal having been accepted by appellee became a contract between the parties binding alike upon each in respect to all its terms and conditions. One of its provisions required appellant to make the shell of the boilers out of a designated brand of iron. The furnishing of "C. H. No. 1 iron" became an indispensable condition of the coutract. Appellant could no more dispense with the kind of iron designated without violating his contract than he could change the size or dimensions of the boilers. It was shown upon the trial that there was a better quality of iron, known as charcoal hammered 'flange" iron, but by the terms of the contract appellaut could not use it if he desired to. He could perform his contract only by using the kind of iron agreed upon.

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Independent of any adjudications on the subject, it would seem most unreasonable to hold appellant liable as upon an implied warranty of the sufficiency of material designated by appellee himself in the absence of proof showing that appellant knew, or by the use of ordinary diligence in selecting the particular plates used might have discovered, they were defective. The cases bearing upon the subject of implied warranties are not altogether harmonious, but we think both reason and justice, as well as the weight of authority, support the proposition that where one orders an article of a manufacturer and designates a particular kind of material out of which the article is to be made in whole or in part, such material not being made by the manufacturer himself, if the manufacturer use the designated material, the law will not imply a warranty

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as to its quality or fitness, unless it be shown that the manufacturer failed to use reasonable and ordinary care in selecting it. The rule is thus stated by Mr. Benjamin: Where a known, defined and designated article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, defined and designated article be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.". Benj. Sales, § 657, citing Chanter v. Hopkins, 4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288, and numerous other English and American cases. See also on the subject generally ALBANY LAW JOURNAL of October 11, 1884.

In Hoe v. Sanborn, 21 N. Y. 552, the defendant purchased of the manufacturer a quantity of circular saws, one of which proved to be worthless by reason of a defect in the iron of which it was made. The seller warranted the saws to be "good saws and of good quality."

In a very interesting opinion by Mr. Justice Selden, in which he discusses the basis upon which implied warranties rest, arguing that they are based upon the knowledge of the seller, either actual or imputable to him by law, as to the quality of the thing sold, he states as the result of his investigations the rule to be this: "The vendor is liable for any latent defect not disclosed to the purchaser, arising from the manner in which the thing was manufactured; and if he knowingly uses improper materials he is liable for that also; but not for any latent defect in the materials which he is not shown and cannot be presumed to have known."

This decision, it will be noticed, was in a case where the particular kind of material had not been designated by the person giving the order for the saws, and yet it was held that there was no implied warranty that the material of which the saws were made was free from latent defects, in the absence of proof that the vendor knew or might have known by the exercise of reasonable care of such defects; that such warranty extended only to an undertaking by the vendor that the saws were free from any defects resulting from their improper construction.

In the subsequent case of Dounce v. Dow, 64 N. Y. 411, Hoe v. Sanborn is cited with approval. But a case entirely analogous in its facts to the present is Cunningham v. Hall, 4 Allen, 268, which was a suit against a ship-builder to recover damages for a breach of contract in building and completing a ship, which when partially built the plaintiff agreed to purchase. It was mutually admitted by the parties that upon a true construction of the contract, which had been negotiated through the medium of a written correspondence, the defendant was on the one hand bound, aud on the other entitled, to use pine plank in planking the ship, and that pine plank were used for that purpose. Upon the trial the plaintiff introduced evidence tending to show that the vessel began to leak immediately upon sailing, and that the leak continued to increase until her arrival at the port of destination, when they were found to be so defective as to require that they should be taken out and replaced by new.

The defendant was allowed to introduce evidence tending to show that pine planks are subjected to latent defects, called "heart-shakes," formed in pine trees during their growth, and that it is sometimes impossible to discover these defects by the exercise of reasonable care and skill in adapting and fastening such planks to the frame of a ship.

The court below instructed the jury that by the terms of the contract the materials to be used were to be reasonably fit and proper for such a ship, and that this meant that they should contain no defect which

could be discovered by the exercise of reasonable care and skill, but did not extend to natural defects in timber which are incident to its process of growth, and which cannot be discovered by the exercise of such skill and care.

*

*

This ruling was approved by the Supreme Court on appeal. In delivering the opinion of the court, Merrick, J., said: "It is undoubtedly now a well-settled rule that if an article be ordered of a manufacturer for an especial purpose or a particular use, and he agrees to furnish it, and nothing is said by the parties as to the materials of or the manner in which it shall be made, there is an implied warranty on his part that it shall be fit for that use. * But if an article or fabric in the particular line of his profession be ordered of a manufacturer for a special and designated purpose, and the parties agree that it shall be constructed of a certain kind of material, but the selection of the particular articles to be used, and the way and manner of using and adapting them to the fabric, are left to the choice and the judgment of the latter without any special stipulations relative thereto, he will not in that case be liable for any loss or damage which may result from the Imperfection of or natural defects in that kind of material. If the defendant in his contract with the plaintiffs had simply agreed that he would finish and complete the ship then on the stocks and deliver it so finished to them at a stipulated price, there would have been an implied warranty on his part that it should be, both as to the workmanship and materials used in its construction, fit for the service for which it was sold. But the contract was in fact modified by a stipulation that it should be planked with pine plank. Under this modification, what would otherwise have created a general liability, the defendant was bound only to use reasonable care and skill in the selection and preparation in that kind of plank, and they could afterward only hold the defendant responsible for damages resulting for his failure to exercise reasonable skill and care in the selection of the plank which he used."

The court cites with approval Hoe v. Sanborn, supra, and other cases to which it is unnecessary to here refer.

In Beck v. Sheldon, 48 N. Y. 365, it was held that where a manufacturer of goods which are known in the market, and the different qualities distinguished by numbers, contracts to sell and deliver goods from his factory of certain numbers, in a suit upon the contract it is not material whether the goods delivered are of equal or inferior quality to those of corresponding numbers manufactured at other factories, or whether or not they are merchantable. If they are the numbers contracted for as manufactured at the contractor's factory the contract is fulfilled.

A leading English case on the subject of implied warranties is Jones v. Clarke, 3 Q.B.197, referred to by Mr. Benjamin, in which the court, upon an extended review of the authorities, classified the cases on the subject, and one class is where a defined article is ordered of a manufacturer, although it is stated to be required for a designated purpose, if the thing ordered be furnished, there is no warranty that it shall answer the purpose intended by the buyer. See cases there cited. See also Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, where is found at least an indirect recognition of the same principle.

Numerous other cases of like import to the foregoing might be referred to, but as they are cited in the foregoing cases, it is unnecessary to refer to them here. Suffice it to say that in such examination as we have been able to make we have found no cases in conflict with those above cited.

In the present case the plaintiff used the brand of

iron agreed upon, and tested the boilers by bydrostatic pressure to 125 pounds to the square inch, as stipulated in the contract. From an inherent defect in the iron caused by improper rolling when made, and which only developed by use, the boiler proved defective. The plaintiff appears to have used all reasonable care and skill in selecting the iron, and was guilty of no fraud.

Under this state of facts we are of opinion that the court below erred in holding and instructing the jury that the plaintiff was liable as upon an implied warranty.

The judgment must be reversed, and the cause remanded for a new trial.

Reversed and remanded.

NEW YORK COURT OF APPEALS ABSTRACT.

PARTNERSHIP-LIMITED - PAYMENT OF CAPITAL, NOT IN CASH-ESTOPPEL-JUDGMENT IN REM-BANKRUPTCY-ADJUDICATION BINDING ONLY ON PARTIES. (1) Where at the time of the filing of the certificate and affidavits for the purpose of forming a limited partnership under the statute (1 Rev. Stat. 763, § 1 et seq.), the special partner had not in fact paid in the sum to be contributed by him, but had given his check therefor payable thereafter, held, that although the check was duly paid, the misstatement rendered the special partner liable as a general partner for all the engagements of the firm. Durant v. Abendroth, 69 N. Y. 148; S. C., 25 Am. Rep. 158. A judgment in rem of a domestic as well as a foreign court, where jurisdiction over the person of a party has not been obtained, except as to his interest in the property affected by the judgment, is not conclusive or bluding upon him by way of estoppel in another action. (2) The general rule as to proceedings in rem is that when the property is within the jurisdiction of the court pronouncing the judgment, whether a domestic or foreign tribunal, whatever the court settles as to the right or title, or whatever disposition it makes of the property, is valid in every country. Story Couf. L., § 592; 1 Greenl. Ev. 543; 2 Wend. 64. But it is not universally settled that the judgment is conclusive as to the facts or allegations on which it is founded. In some of the States of the Union, and especially in the State of New York, though there are decisions to the contrary in the court of England and in the United States, it has long been settled that foreign judgments in rem are conclusive only as to the property involved, and may be controverted as to all the grounds and incidental facts on which they profess to be founded. Vandenheuvel v. United Ins. Co., 2 Johns. Cas.451; reversing S. C., 127. So the judgment even of a neighboring State on foreign attachment, if the defendant has not appeared and litigated, is treated as a proceeding in rem and not personally binding on the party, as a decree or judgment in personam. It only binds the property seized or attached in the suit. 1 Greenl. Ev., § 542, and cases cited: Story Confil. L., § 549. And it is not conclusive evidence of the debt in another suit between the same parties. Phelps v. Holker, 1 Dall. 261; Betts v. Death, Add. 265. In such cases the action is regarded, as to the absent defendant, as a proceeding in rem (Schwinger v. Hickok, 53 N. Y. 280), and it would be contrary to all principle to hold him personally bound, as to any fact determined in such a proceeding in his absence, so that he should be forever precluded from denying it in a subsequent litigation concerning matters other than his interest in the property affected by the judgment. Certain creditors of the firm presented a petition to the register in bankruptcy, setting forth that two days before the filing of

the petition in bankruptcy, certain other creditors had agreed to sell their claims to A. at twenty-five per ceut, had afterward proved their claims in bankruptcy and then assigned them to A. The petitioners asked that said claims be disallowed on the ground that A. was a special partner, and that under the statute (1 Rev. Stat. 720, § 23) no special partner could, save as excepted in the statutes, claim as creditor until the claims of all other creditors were satisfied. The register overruled the point, holding that in respect to the assigned claims, A. stood in the position of his assignors, and was only a creditor as their representative. This decision was sustained by the Bankruptcy Court. Held, that conceding the decision to be in effect an adjudication that A. was only a special partner, it was not binding outside of the bankruptcy proceedings upon creditors who were not parties to the application. See Hayes v. Heyer, 35 N. Y. 326-330; Innes v. Lansing, 7 Paige, 588. It is argued that proving the debt against the estate of the general partners, and receiving a dividend thereon, were equivalent to obtaining a judgment thereon against the general partners alone, the effect of which would have been to discharge the other partner. U.S.v. Leffler, 11 Pet. 86, 101; Robertsou v. Smith, 18 Johns. 459. The rule, if still subsisting, that the recovery of a judgment against some of the partners of a firm consisting of more, is a bar to a subsequent action against all the partners, would be wholly inapplicable to the present case. The reasons for that rule were, first, that a judgment against a portion of the partners merges the debt as to them, and thus destroys the joint indebtedness; and second, that there being already a judgment against some of the partners, and they being necessary parties to the second suit, a second recovery against all would result in two judgments against the same persons for the same debt. It is obvious that neither of these reasons

can apply to the case of merely proving a debt against the estates of some of several joint debtors. It is worthy of note however that none of the cases rest upon the ground here assumed by the respondent, that recovering a judgment in an action against only two of three joint debtors estops the creditor from afterward claiming that the third was also jointly liable for the same debt. Durant v. Abendroth. Opinion by Rapallo, J.

[Deoided Oct. 7, 1884.]

proved July 23, 1866, ch. 219 (14 St. 218, "to quiet land titles in California," but that act was not referred to in the complaint, and besides it purports only to confirm the title of the State, which in this case is perfect without it. No attempt is made in that act to provide for the settlement of the rights of conflicting claimants under the State. Congress contented itself with the confirmation of the State's title, and left all who claimed under that title to their remedies in the courts or other tribunals provided by law for that purpose. California v. Jackson. Opinion by Waite, C. J.

[Decided Nov. 7, 1884.]

INTERNAL REVENUE-INFORMATION FOR FORFEITURE-GENERAL VERDICT GOOD.-Upon the trial of information under section 3372 of the Revised Statutes the verdict was returned in this form: "We, the jury, find a verdict for the government, evaluating the goods and machinery seized at a sum of $1,000." The claimaut moved in arrest of judgment that several of the counts were insufficient, and that the verdict was

general upon all the counts, and was vague and uncer.
tain, and not responsive to the issue. The motion was
overruled, and judgment rendered for the United
States, and the claimant sued out a writ of error.
Informations under the revenue laws for the forfeiture
of goods, seeking no judgment of fine or imprisonment
against any person, are not strictly criminal cases, in
which the decisions of the Circuit Court are final, un--
less a division of opinion is certified; but they are
civil actions, of which this court has jurisdiction in
error, without regard to the sum or value in dispute,
Rev. Stat., § 699; Pettigrew v. United States, 97 U. S.
385. Yet as has been expressly adjudged, they are so
far in the nature of criminal proceedings as to come
within the rule that a general verdict upon several
counts, seeking in different forms one object, must be
upheld if one count is good. Clifton v. United States,

4 How. 242, 250. As one of the counts in this case is
admitted to be good, it is unnecessary to consider the
objections taken to the other counts. The verdict,
though expressed in bad English, clearly manifested
the intention and finding of the jury upon the issue
submitted to them, and the court rightly gave judg-
ment upon it. Rev. Stat., § 954; Parks v. Turner, 12
How. 39, 46; Lincoln v. Iron Co., 103 U. S. 412. Sny-
der v. United States. Opinion by Gray, J.
[Decided Nov. 17, 1884.]

UNITED STATES SUPREME COURT AB-
STRACT.

EVIDENCE-COMPETENCY OF WITNESS-NEW YORK CODE CIVIL PROCEDURE, SEC. 834-U. S. R. S., SEC. 721-INSURANCE-QUESTION AS TO DISEASE.- (1) The

46

JURISDICTION AMOUNT IN DISPUTE.-The jurisdic-provision in the New York Code of Civil Procedure,
§ 834, that "
tion of the Supreme Court for the review of the judg-
a person duly authorized to practice physic
ments and decrees of the Circuit Courts, in so far as
or surgery shall not be allowed to disclose any infor-
mation which he acquired in attending a patient in a
it is affected by the $5,000 limitation, depends on the
professional capacity, aud which was necessary to ena-
value of the matter in dispute in the Supreme Court,
ble him to act in that capacity," is obligatory upon
and it is the actual matter in dispute, as shown by the
the courts of the United States sitting within that
whole record, and not the ad damnum alone which
State in trials at common law. That section provides
governs. Hilton v. Dickinson, 108 U. S. 165. Opinion
that
by Waite, C. J.
a person, duly authorized to practice physic or
surgery, shall not be allowed to disclose any informa-
tion which he acquired in attending a patient in a pro-
fessional capacity, and which was necessary to enable
him to act in that capacity." It is not, and could not
well be seriously questioned, that the evidence exclu-
ded by the Circuit Court was inadmissible under the
rule prescribed by that section. Grattan v. Metro-
politan Life Ins. Co., 92 N. Y. 274; Same v. Same, 80
id. 281; Pierson v. People, 79 id. 424; Edington v.
Etna Life Ins. Co., 77 id. 564; Edington v. Mutual
Life Ins. Co., 67 id. 185. But it is suggested that truth
and justice require the admission of evidence which
the statutory rule, rigorously enforced, would exclude,
and that it cau be admitted without disturbing there-

[Decided Nov. 7, 1884.]
JURISDICTION GRANTOR'S TITLE FROM UNITED
STATES ADMITTED, ACT OF 1866, CH. 219.—In a suit for
the recovery of lauds where both parties claim under
a common grantor, whose title from the United States
is admitted, the Supreme Court has no jurisdiction
for the review of the decisions of a State court upon
questions relating only to the title acquired by the sev-
eral parties under their respective grants from the
common grantor, and which are not in themselves of
a Federal character. Romie v. Casanova, 91 U. S. 379,
and McStay v. Friedman, 92 id. 723. Some reliance
was had in the argument on the act of Congress ap-

SHIP AND SHIPPING-MARITIME DEBTS-FIRST ATTACHMENT GIVES NO PREFERENCE-OTHER CREDITORS

lations of confidence properly existing between physician and patient; that it would not afflict the living nor reflect upon the dead, if the physician should testify that his patient had died from a fever or an affection of the liver; and that the rule, as now understood and applied in the courts of New York, shuts out, in actions upon life policies, the most satisfactory evidence of the existence of disease and of the cause of death. These considerations, not without weight, so far as the policy of such legislation is concerned, are proper to be addressed to the Legislature of that State. But they cannot control the interpretation of the statute, where its words are so plain and unambiguous as to exclude the consideration of extrinsic circumstances. Since it is for that State to determine the rules of evidence to be observed in the courts of her own creation, the only question is whether the Circuit Court of the United States is required by the statutes governing its proceedings to enforce the foregoing provision of the New York Code. This question must be answered in the affirmative. (2) By section 721 of the Revised Statutes, which is a reproduction of the 34th section of the Judiciary Act of 1789, it is declared that "the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply." This has been uniformly construed as requiring the courts of the Union, in the trial of all civil cases at common law, not within the exceptions named, to observe as rules of decision, the rules of evidence prescribed by the laws of the States in which such courts are held. Potter v. National Bank, 102 U. S. 165; Vance v. Campbell, 1 Black. 427; Wright v. Bales, 2 id. 535; McNeil v. Holbrook, 12 Pet. 84; Sims v. Hundley, 6 How. 1. (3) To the question, in an application for insurance upon life, whether the applicant had ever had the disease of "affection of the liver," the auswer was "No." Held, that the auswer was a fair and true one within the meaning of the contract, if the insured had never had an affection of that organ which amounted to disease; that is, of a character so well defined and marked as to materially disturb or derange for a time its vital functions; that the question did not require him to state every instance of slight or accidental dis-duced by the rule of law which gives the preference to orders or ailments affecting the liver which left no the creditor first attaching. We know the rule at law trace of injury to health, and were unattended by sub-giving the preference to the first attachment, in its stantial injury or inconvenience or prolonged suffer- practical operation, is often oppressive on debtors and ing. Conn. Mut. Life Ins. Co. v. Union Trust Co. unjust to creditors. For these reasons has been Opinion by Harlan, J. abolished in a good many States, and the first attach[Decided Nov. 17, 1884.] ment made to perform the office, in some measure, of a proceeding in insolvency or bankruptcy, for the equal benefit of all the creditors proving their debts within a limited time. The tendency of legislation and the courts is toward the adoption of rules to prevent preferences. But the injurious consequences of rewarding the most exacting creditor with a preference would, for obvious reasons, be much greater in admiralty than they are at law. Dist. Ct., E. D. Ark., Oct., 1884. The Lady Brone. Opinion by Caldwell, J.

MAY INTERVENE.-By the maritime law the creditor first filing a libel aud arresting the vessel does not thereby acquire the right to have his debt paid in full to the exclusion of other creditors whose debts are of the same rank and equal merit, and who intervene and prove their debts before or at the time a final decree in the suit first brought is rendered. In 2 Pars. Ship. & Adm., it is said: "If the different demands are of the same nature, priority in beginning the suit will not give priority in payment if the other demands are brought to the attention of the court before a decree in the first suit brought is rendered." The rule that a creditor who iustitutes the first suit does not thereby acquire priority of right to payment over other creditors of the same class who have been guilty of no laches, is supported by the following cases: The Paragon, 1 Ware, 330; The America, 16 Law Rep. 264; The Fanny, 2 Low. 508; The E. A. Barnard, 2 Fed. Rep. 712; The City of Tawas, 3 id. 170; The J. W. Tucker, 20 id. 129; The Superior, 1 Newb. Adm. 186. And to the same general effect: The Eolian, 1 Bond, 267, 270; The Fort Wayne, id. 476, 490; The Kate Hinchman, 6 Biss. 367; The Phebe, 1 Ware, 360. In support of his motion the libellant relies on Ben. Adm. (2d ed.), § 560, where it is said: "In claims of the same rank, the one first commencing his proceedings is preferred in the distribution. The party first seizing holds the property against all other claims of no higher character." And we are referred to The Globe, 2 Blatchf. 427, note; The Adele, 1 Ben. 309; Woodworth v. Ins. Co., 5 Wall. 87. The last case cited stands on grounds of its own, and has no application to the case at bar. By the maritime law the creditors of the same rank have an equal lien or privilege on the vessel. An eager and grasping creditor ought not to have it in his power to destroy this equality of privilege, and obtain a preference, by the mere act of instituting the first suit to enforce the lien. Such a rule would be unjust to the other creditors, prejudicial to the owners of vessels, and injurious to the interests of commerce. It would tend to hasten and foster litigation, and would introduce into the maritime law that unseemly struggle between creditors themselves pro

UNITED STATES CIRCUIT AND DISTRICT
COURT ABSTRACT.*

MORTGAGE FORECLOSURE ASSIGNEE OF MECHANIC's

LIEN-NECESSARY PARTY-PURCHASER AT SALE-UN

|

DER MECHANIC'S LIEN CANNOT BE EJECTED.—(1) An assignee of a mechanic's lien is a necessary party to a suit to foreclose a mortgage given after the lien commenced, although the mortgagee had no knowledge of the existence of the same and the mortgage was filed of record before the commencement of statutory proceedings to enforce said lien. (2) A purchaser at the sale of such a mortgage by advertisement acquired no right to eject a purchaser at a sale made under fiual decree in proceedings to enforce the mechanic's lien, the mortgagee under above circumstances being in the position of a subsequent incumbrancer to the mechanic's lien holder. Cir. Ct., D. Minn., Oct., 1884. Atkins r. Volmer. Opinion by Nelson, J.

*Appearing in 21 Federal Reporter.

SHIP AND SHIPPING OBSERVING LIGHTS-MUTUAL FAULT-NEGLIGENCE DECKHAND, INJURED SEVERAL LIABILITY.-A tug is bound to keep her colored lights in such a position that her tow will not obscure them, as respects vessels at a distance requiring the notice which the colored lights are designed to afford. Where the Tug T. had on her starboard side the barge M. in tow, loaded with railroad cars, partly sheltered by a narrow fore and aft roof called an umbrella, which was of such height as to obscure the tug's green light as she was going up the North river, and steamer H., crossing the river to the

COLLISION

northward and seeing no colored light, supposed the T. was going down river instead of up river, and ported so as to go astern of the T., as she supposed, but too late discovered the error and came in collision, held, that the collision was caused in part by the obscuration of the green light, for which the T. was responsible. Held, that the H. was also in fault for want of any proper lookout, when going at the rate of thirteen miles in crossing the river, as such a lookout might have discovered that the T. was going up river in time for the H. to avoid her. A deck hand on the H. having been injured by the collision without his own fault, held, that he had a several claim for his whole damages against the T., and the T. being responsible, and having a right to indemnity from the H. for one-half what the T. must pay by reasou of the common fault of both vessels, held, that the usual de. cree might go against both, without considering the question whether the deck hand, as a fellow laborer, could have maintained a separate suit against the H. or her owners alone. It is unnecessary to consider the question which has been raised by counsel, whether the deck hand on board the H., is precluded from recovering any damages of her, or of her owners, by reason of any fault in her navigation, on the ground that he was a fellow-servant of the pilot in charge. The T., being in fault, is answerable for the whole damage caused him, aud the liability of the T. is not a mere joint liability with the H., though both are found in fault. The T., for its tort, is severally liable for the whole damage. The Atlas, 93 U. S. 302; Chartered Mercantile Bank v. Netherlands, etc., 9 Q. B. Div. 118; 10 id. 521, 546. The defense that he was a fellow-laborer with the pilot of the H., even if possible to the H., would be no defense to the several liability of the T. In having to pay for his injuries, the T. sustains damages by the collision to that extent, as much as if the injury were to cargo on board the T. or the H., for which she was bound to pay; and as this injury arose from the fault of both vessels, the H. must auswer over for half of what the T. is obliged to pay; and the T. being answerable for the whole damage, has a right to require the H. to pay one-half of what she will be obliged to pay to him on account of the common fault of both. The Eleanora, 17 Blatchf. 88105; The Hudson, 15 Fed. Rep. 162, 164; The Canima, 17 id. 271, 272; The C. H. Foster, 1 id. 733. There is no evidence of any personal negligence on the part of the deck hand. He was not assigned to duty as lookout, so far as appears, and he was apparently engaged in other duties. It was not his business to leave the duties assigned him and to act as lookout without orders. Dist. Ct., S. D. New York, July, 1884. Briggs v. Day. Opiniou by Brown, J.

LIMITATION-RUNS FROM DISCOVERY OF FRAUDSLIEN OF JUDGMENT-BONA FIDE PURCHASER-TITLE THROUGH UNRECORDED DEED-RIGHTS OF PURCHASER. -(1)The making of a deed to defraud creditors, and keeping it off of the record by all of the persons concerned in and cognizant of the transactions, combined with their purposed silence upon the subject, is such a concealment as will prevent the statute of limitations from running until there has been a discovery of the fraud. See Meader v. Norton, 11 Wall. 442; Carr v. Hilton,1 Curt.C. C. 238; Vane v. Vane, L. R.,8 Ch. App. 383; Rolfe v. Gregory, 4 De G., J. &. S. 576; Hovenden v. Annesley, 2 Schoales & L. 634; Buckner v. Calcote, 28 Miss. 568. Cited to the contrary: Wynne v. Cornelison, 52 Ind. 319; Jackson v. Buchauan, 59 id. 390; Musselman v. Kent, 33 id. 458; Pilcher v. Flinn, 30 id. 202; Boyd v. Boyd, 27 id. 429. (2) The doctrine that the general lien of a judgment upon land is subject to any and all adverse equities or claims, whether secret and unknown, or recorded and known, does not pre

vail in Indiana against an assignee of a judgment who pays value and takes the assignment in good faith. Flanders v. O'Brien, 46 Ind. 284; Huffman v. Copeland, 86 id. 224, and cases cited. The complainants however sue, not as assignees, but as judgment plaintiffs, and are therefore subject to the general doctrine, SO far as it is pertinent to the question presented; but in my judgment it has little or no application. The policy of the recording acts is not involved or material to be considered, except incidentally, because the deeds in controversy are not assailed for want of registration, but for alleged fraud in their execution. The attack is not made under the recording act quoted from in argument, but under another section (Rev. Stat. 1881, § 4920), which declares that all conveyances of lands made with intent to defraud creditors "shall be void as to the persons sought to be defrauded; " and only as it may affect the rights of parties under this act can it be material to consider the law concerning the registration of deeds. The question presented therefore is whether or not, under the facts alleged in the bill, the respondents who demur can claim title under unrecorded deeds, of which they had no knowledge when they purchased, to the injury of the plaintiffs, as against whom the deeds were in fact fraudulent and void, or voidable. As against a prior mortgage or deed honestly made to a good-faith purchaser, the general lien of a judgment must unquestionably yield; but this by no means supports the proposition involved in the facts presented, that one may take a title apparently perfect of record, and which seems of record to be, as in fact by law it is, subject to the lien of a judgment, and afterward upon learning that fraudulent deeds had been made, be allowed to claim title through them in order to defeat the lien of the judgment, though at the time of his purchase he had no knowledge of the existence of the deeds, and supposed he was getting the title as it appeared of record. It is true that the owner of land, or one asserting title, is bound by the contents and recitals of all deeds in the chain of title which he claims. But it is not true, as I suppose, and has never been decided, that a purchaser is bound by the contents of unrecorded and unknown deeds which were not essential to the chain of title as it appeared of record, or as otherwise made known to him. It often happens, as may well be supposed, honestly as well as for fraudulent purposes, that titles after various mesne conveyances return to some prior owner, aud if the conveyances which constitute such a loop in the chain of title should, for any reason, have been left off the record, it would be a startling proposition indeed that all subsequent grantees must take notice of their contents. Under such a doctrine, if not positively dangerous, the registry laws would certainly be made comparatively useless. Cir. Ct., D. Ind., Sept. 6, 1884. McAlpine v. Hedges. Opinion by Woods, J. [ (1) See 24 Am Rep. 45, 517; 31 Eng. Rep. 723.-ED.]

MISSOURI SUPREME COURT ABSTRACT.*

ADMINISTRATOR'S SALE-ERROR IN DEED-EQUITY TO TITLE-Where a purchaser of land at administrator's sale pays the purchase-money, and the same is applied in discharge of the debts of the decedent, but the land is not correctly described in the administrator's deed, an assignee of the purchaser will be entitled to a decree in equity correcting the error and divesting the legal title to the land out of the heirs of the decedent and vesting it in him. Grayson v. Weddle. Opinion by Henry, J.

* To appear in 80 Missouri Reports.

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