Irvine v. Irvine, 76 U.S. (9 Wall.) 617

Irvine v . Irvine .

When one makes a deed of land covenanting that he is the owner, and

sequently acquires an outstanding and adverse title, his new acqui-

sition enures to the grantee on the principle of estoppel.

e a person has bought land and paid for it, the deed subsequently

a e in consequence does not confer a new title on him but confirms o r™ e ng fc which be had acquired before the deed was made. ‘ 4th’ 18411 * 12 <5 Stat at Large, 45fbi May

5. Although it is not necessary to the affirmation of an infant’s voidable deed that there be an act of affirmance by him, after he comes of age, as solemn in character as the original act itself, still mere acquiescence without anything else, is not generally sufficient evidence of affirmance. Any ratification or affirmance of a clear and unequivocal character, showing an intention to affirm the deed, is, however, enough.

6. Where the infant, having come of age and entered into partnership with third persons, took a lease for his firm of one part of the property which as an infant he had conveyed, from the person to whom he had so conveyed that part with other parts, the lease is proper to go to the jury, on a suit by the infant for these other parts alone, to show an affirmance of his deed for the whole; and with such evidence before the jury a court rightly refused to charge that the evidence showed no affirmance. Whether it did show an affirmance or not was, with this lease before them, matter for the jury to decide. 7. A court properly declines to give instructions on a hypothetical state of facts.

Err or to the Circuit Court for the District of Minnesota. The case was thus:

Benjamin Irvine brought ejectment against his brother John Irvine, to recover from the said John possession of certain lots. He put in evidence a patent (founded on a pre-emption certificate) from the United States to him, dated 8th October, 1849, and embracing the lots in controversy. The patent recited full payment by the said Benjamin, “according to the provisions of an act of Congress of the 24th

of April, 1820.”

The defendant then offered in evidence a deed of conveyance from the plaintiff to him, dated 8th May, 1849, of the same premises as were described in the patent. To t is evidence the plaintiff objected, because the deed, having been executed before the patent was issued, did not convej the estate which the plaintiff acquired by the patent.

“ That prior to any entries being made under and by virtue of the provisions of this act, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands may lie, . . . and all assignments and transfers of right hereby secured prior to the issuing of the patent shall be null and void.”]

The court overruled the objection of the plaintiff, and admitted the deed offered; the plaintiff’s counsel excepting.

The defendant having further put in evidence, under objection from the plaintiff’s counsel, the certificate of the register of the contents of the records of his office, rested his case.

The plaintiff was then himself examiimd as a witness, and stated that when he executed the deed of May 8th, 1849, he was under 21 years of age, and that he was really forced by his brother, the defendant, who was 16 years his senior, to execute the instrument. There was no doubt as to the plaintiff s infancy at the time when he executed this deed. It appeared that the plaintiff had made pre-emption of the land; that he paid for it on the 21st of February, 1849, and took an informal receipt for it of that date, which was subsequently replaced by a formal duplicate, but of what date did not appear.

The plaintiff then rested, and the defendant put in evidence certain evidence, which tended to show that he had employed

e p aintifi as his agent to enter the land for him, and that e> the plaintiff, had paid for it with money of the defendant rusted to him for that purpose, entering it in his own name, and promising to convey it to the defendant.

* 5 Stat, at Large, 456. f 4 id. 420. j Ib. 496>

He also put in evidence a written lease, dated 8th day of May, 1854, from him, defendant, John Irvine, to the plaintiff himself and two other persons doing business as a firm, of a certain warehouse, situated on a parcel of the land described in the patent, and in the deed of the 8th May, 1849, but not on any part of the premises described in the declaration. There was also evidence of the plaintiff’s having been in the neighborhood of the property when valuable improvements were put on a portion of it, though not the part for which this suit was brought; and also some other evidence set up to show affirmance.

The defendant then rested.

Upon the case already stated, and with the statute of September 4th, 1841, presented to the court, the plaintifi requested the court to give to the jury the instructions as hereinafter numbered, to wit:

1st. That the deed in evidence from the plaintiff to the defendant, dated 8th May, 1849, did not pass the estate acquired subsequently under the patent from the government to the plaintiff, even assuming the majority of the plaintiff at the time of its execution.

But the court declined so to instruct the jury.

2d. If the jury find that the said deed was executed by the plaintiff while under age (and the evidence is uncontroverted on this point), the said deed is void.

But the court declined so to instruct the jury.

4th. A deed of land executed by an infant may be avoided by the infant after he becomes of age, at any time within the perio of the statute of limitations, which in this State is twenty jears, that is, he may in such case in this State avoid his deed at any time within twenty years after he becomes of age.

And the court instructed the jury that such was the law, unless the infant had previously ratified the deed.

Aud the court so instructed the jury.

6th. In case of sale or deed of real estate by an infant, there must be some act of affirmance by him after he^becomes of age, as solemn in character as the original act itself; otherwise the deed may be avoided by him at any time before the statute of limitations bars him. Mere acquiescence, however long, if short of the statute of limitations, is not sufficient. The act of confirmation must be of such solemn and undoubted nature as to establish a clear intention to confirm the deed after a full knowledge that it was avoidable.

The court declined to instruct the jury that the act of affirmance must be as solemn in character as the original deed itself; but stated that mere acquiescence was not of itself sufficient evidence of affirmance, and that the ratification or affirmance must be of a clear and unequivocal character, showing the intention of the infant to confirm his deed.

7th. There is no evidence whatever of any affirmance or confirmation of the deed in this case by the plaintiff after he became o age, of the nature and character required. The evidence in this case shows no affirmance of this deed by the plaintiff after he became of age.

But the court declined so to instruct the jury.

8th. No agency or trust binding on the plaintiff has been

^ave ^een created or to have existed between the

and defendant during the infancy of the former. No

tract is binding on the infant made during his infancy except for necessaries.

thiq^6 C0Ur^ inducted the jury that the latter portion of

onnia +WaS ^rUe’ and ^at although an agency or trust was k° 6 Crea^ Binding upon the infant, still if there his seTnent ratification by the infant of acts done during ms infancy he would be bound by them.

9th. Even had the plaintiff been of full age when the defendant gave him the money to enter the land, as the defendant testifies, and directed him, as the defendant testifies, to enter the land for defendant, and the said plaintiff had entered the land in his own name, still the defendant could not have compelled in law or equity the plaintiff to convey the property to said defendant.

The court declined to so instruct the jury upon the ground that it was admitted by the defendant that the plaintiff was not of full age when the money to enter land was given him, and consequently that this request had no application to the case in hand.

10th. No trust has been shown in .this case between the parties to this suit by which the defendant could have enforced a conveyance of the land from the plaintiff to him.

The court declined to instruct the jury as above requested, but said that there had been evidence on the part of the defendant going to show that the plaintiff was employed to enter the land in question, and although an infant, as he afterwards affirmed, his acts would be bound by it.

11th. Even if the plaintiff had entered the land as agent of the defendant, and had entered it in his own name contrary to instructions of his principal, yet if the defendant afterwaids ap proved of such entry, such approval was a ratification of sai entry.

The court instructed the jury that this might be true, but that the evidence showed that the infant had conveyed t e land after entry by him, and that it was for the jury to say whether he had ratified his deed.

12th. No acts of affirmance by the plaintiff have any bearing in this case, except they relate to the property described in t declaration, and all evidence on this point, except as to t e o described in the declaration, must be excluded and disrega by the jury.

But the court declined so to instruct the jury* To these refusals and instructions the plaintiff excep e

The court then further instructed the jury as to the 4th, 5th, and 6th of the said instructions so prayed by the plaintiff as aforesaid:

The question here is not whether there has been an avoidance. The defence is that the deed has been ratified by the plaintiff. I am of the opinion that the ratification should be, if not equally solemn, of a clear and unequivocal character, showing the intention of the party to confirm the deed. An avoidance may be by a deed to a third party, or, as held in this country, in other ways. But the deed from the plaintiff to the defendant was not void ; it was simply voidable, and passed the title absolutely, until by some adequate act he affirmed it. The question is, Has it been disaffirmed or ratified by the plaintiff since he came of age ? All the facts in proof, such as leasing part of the property, remaining in the vicinity a long time without asserting his claim while valuable improvements were being put on the property, are to be considered by the jury in deciding whether there has been a ratification by the plaintiff; but mere acquiescence does not amount to a ratification. The authorities are somewhat conflicting as to what is necessary to constitute an avoidance. Lord Lyndhurst was of opinion that a deed was necessary to avoid a deed given while under age. I think that this doctrine is perhaps sound, and ought to have been held in this country; but it has been held in this country that an infant may avoid his deed by going upon the land, or by bringing suit, V With foreSoing qualification the 6th instruction as e by the plaintiff’s counsel is correct, with the exception that the counsel has reversed the'application of. the law in his proposition. The act of avoidance and not the ratification is

at t e law requires to be equally solemn with the conveyance.

To which instructions, in so far as they differed from, or anged or qualified the instructions prayed for by the plaintiff, the plaintiff excepted.

And the court further ¡¿struct«] the jury that there had th , ence On the part of the defendant going to show in nnn !-P aintl? Was emPloyed as an agent to enter the land hiA S 10U’and though an infant, if he afterwards affirmed To 6 Wou^d be bound by the terms of such agency,

which instruction the plaintiff’s counsel excepted

Argument for the infant.

Verdict and judgment having gone for the defendant, the plaintiff brought the case here on error.

The court erred in admitting the deed from plaintiff to defendant of 8th May, 1849. It could not convey the estate and title subsequently acquired by the plaintiff under the patent. If it be regarded as an attempt to convey or assign the right secured to the plaintiff by his pre-emption of this land, it was void under the 12th section of the act of Congress of September 4th, 1841, by virtue of which the pre-emption was made. If thus void as coming within the prohibition of this section 12, the covenants in it would be inoperative for any purpose. A deed void in its granting part cannot certainly be operative as a conveyance by virtue of its covenants.

The only view in which the lease and other similar evidence could have been offered, was that it tended to prove the confirmation of the deed of the 8th May, 1849, by the plaintiff after he became of age. But it is no evidence of such confirmation, because—

1st. It does not affect the property described in the declaration.

2d. In the case of sale or deed of real estate by an infant, the sale is void, and the act of affirmance by him after he becomes of age must be as solemn in character as the original act itself.

The learned counsel then took up each of the requests to the court, and each of the instructions refused; observing, in conclusion, that the whole case resolved itself into tvo questions.

«1. Was the deed of 8th May, 1849, void, by reason of its contravening the 12th section of the act of Congress, o ep tember 4th, 1841; or , ineffectual to pass the subsequent y ac quired title and estate of the plaintiff under the patent o October, 1849? .

“ 2. If the deed was merely voidable, by reason of the in anc of the grantor, did he, after he came of age, affirm the ee

And he conceived that he had shown that the first question should be answered in the affirmative, and the second in the negative.

Mr. Justice STRONG delivered the opinion of the court.

Though the exceptions found in this record are numerous, the questions which they present are few. If the answers given to the requests of the plaintiff for instructions to the jury were correct, it is certain that the objections made by him to the admission of evidence were unfounded. Those objections were all based upon the assumption that the evidence offered was immaterial and irrelevant to the issue. Whether the assumption was well grounded will be seen when we consider the law of the case as expounded in the charge to the jury.

The plaintiff’ submitted twelve propositions, which he asked should be given to the jury as instructions. The first was in substance that the deed of May 8th, 1849, from the plaintiff to the defendant, did not pass the estate acquired by the plaintiff under the patent from the United States made subsequently, to wit, on the 8th of October, A.D. 1849, and that it would not have passed the estate had the plaintiff attained his majority before the deed was made. It is a general rule, that when one makes a deed of land, covenanting therein that he is the owner, and subsequently acquires an outstanding and adverse title, his new acquisition enures to the benefit of his grantee, on the principle of estoppel. As the deed of the plaintiff in this case contained an assertion that he was well seized in fee, and had good right to sell and convey in fee, it would not be difficult, were it necessary, to show that in taking the patent he was in law acting for bis grantee. But it is not necessary to rely upon that principle. The evidence in the case was, that prior to his deed to the defendant, to wit, on the 21st of February, 1849, he ad bought the land from the government, and had paid all t e purchase-money. The patent subseouentlv eriven to him

was, therefore, not a new acquisition of title. It was only a confirmation of the right which he had acquired before the deed was made.

But it is argued, on behalf of the plaintiff', that the deed was inoperative, because it w’as forbidden by the 12th section of the act of Congress of September 4th, 1841, which granted pre-emption rights, and enacted that any grant or conveyance made before the entry of the land shall be null and void, except in the hands of bond jide purchasers for a valuable consideration. To this it may be answered, that neither that act nor the acts'of May 29th, 1830, and January 23d, 1832, have any application to the present case. They relate to pre-emptive rights conferred upon actual settlers. The plaintiff’ did not enter the land in dispute under either of these, and no act of Congress deprived him of the power to sell and convey after he had made an entry and paid all the purchase-money, though before he had received his patent. The court could not then have affirmed the proposition which the plaintiff* submitted.

His second point was that the deed was void because made by the plaintiff* during his minority. This the court refused to affirm. Whatever may have been the doubts once entertained, it has long been settled that the deed of an infant, being an executed contract, is only voidable at his election, that it is not void. It operates to transmit the title. And there are some cases, of which the present, in one aspect o it, may possibly have been one, in which such a deed is held to be not even voidable. They are those in which the infant, by making the conveyance, does only what the law would have compelled him to *do. Whether this was sue i a deed need not be considered, for conceding that it was not, clearly it was not void.

The third proposition of the plaintiff* does not appear in the record.

The fourth and fifth were affirmed, and the sixt was answered correctly.

The minority of the plaintiff at the time when he made his deed to the defendant was an admitted fact, and this suit was an attempt to avoid the deed. The evidence disclosed nothing that could amount to an avoidance of the deed before the suit was brought; nothing which the law recognizes as an act of avoidance. The struggle at the trial was over the question, whether the plaintiff had not confirmed the deed after he came of age? He contended, and he asked the court so to instruct the jury, that an act of affirmance must be of as solemn a character as the deed itself. This instruction the court declined in terms, stating:, however, that mere acquiescence, however long, if short of the statutory period of limitations, is not sufficient, and that an act of confirmation, if not equally solemn with the deed, must be of such a solemn and undoubted nature, of such a clear and unequivocal character, as to establish a clear intention to confirm the deed after a full knowledge that it was voidable. Certainly this was all that the plaintiff had a right to demand. There is a well-recognized distinction between the nature of those acts which are necessary to avoid an infant’s deed, and the character of those that are sufficient to confirm it. The authorities frequently assert that such a deed cannot be avoided except by some act equally solemn with the deed itself. Some assert that it cannot be done by anything short of an entry; and this whether the deed operates by livery of seisin, or transmits the title by virtue of the statute of uses. Others hold that it may be avoided, without a previous entry, by another deed made to a different grantee. But all the. authorities recognize the doctrine, that acts which would he insufficient to avoid such a deed may amount to an affirmance of it. While generally it has been held that mere acquiescence, though long continued, will not suffice; yet even t at, in connection with other circumstances, may establish a ratification.* And, where an infant had sold land, and

Oh* C:Tg:r V' The Lessee Of Welch> 15 Ohio, 193; Drake v. Ramsey, 5 t to ’ ergU80n Missouri, 347; Bostwick v. Atkins, 8 Comstock, 58.

after coming of age saw the purchaser making large expenditures in valuable improvements upon the land sold, and said nothing in disaffirmance for four years (facts very like those appearing in this case), it was held that the circumstances were not such as to excuse this long silence, and there being evidence that after he had reached twenty-one years of age he had said that he had sold the land, had been paid for it, and was satisfied, and had authorized an offer to purchase it, it was ruled, as a legal conclusion, that he had confirmed his deed.* So in Wallace’s Lessee v. Servisrf it was adjudged that an infant’s acquiescence in his deed for four years after he came of age, in view of extensive improvements made upon the property, amounted to a confirmation.

There is reason for this distinction between the effect of acts in avoidance and that of acts of confirmation. We have seen that an infant’s deed is not void; it passes the title of the land to his grantee. Now, if the deed be avoided the ownership of the land is retransferred. The seisin is changed. There is fitness in a rule that title to land shall not pass by acts less solemn than a deed; that its ownership shall not be divested by anything inferior to that "which conferred it. On the other hand a confirmation passes no title; it effects no change of property; it disturbs no seisin. It is therefore itself an act of a character less solemn than is the act of avoiding a deed, and it may well be effected in a less formal manner.

lhe eighth and tenth points relate to some evidence that had been given, tending to show an employment of the plaintiff by the defendant to enter the land for him, and that the plaintiff paid for it with the defendant’s money, furnished to him for that purpose. The court was asked to instruct the jury that no trust or agency had been shown which could have been enforced. We do not perceive how the court could rightfully have affirmed what was asked. An infant may undoubtedly be a trustee, and be compelled to execute his trust. Especially, if after he came of age, he affirms the trust, and ratifies the acts which he did in accordance with the trust, will it be out of his power to deny that any trust ever existed. But we need not discuss this subject; it is of small importance to the case. It is enough that, in our opinion, it was not for the court to deny that ^eve had been a resulting trust, and had they denied it the plaintiff would have gained nothing. The controlling quesvpvo J v01-e subnntted t0 the jury, was whether he had con-

The ninth request for instruction presented an abstract question not raised by anything in the case. The court did well to decline answering it. Certainly it should not have been affirmed.

The eleventh proposition was affirmed, and the twelfth was correctly answered, as we have shown in our remarks upon the seventh.

We have thus reviewed the entire record and have found no error. If anything has been left unnoticed it is because we consider it unimportant. The plaintiff has himself well summed up the case by stating that there are but two questions presented by it: “ First, was the deed of May 8th, 1849, void by reason of its contravening the act of Congress of September 4th, 1841, or ineffectual to pass the subsequently acquired title and estate of the plaintiff under the patent of October 8th, 1849? Second, if the deed was merely voidable by reason of the infancy of the grantor, did he, after he came of age, affirm it?” The first we have answered in the negative, and the second was properly submitted to the jury.

The judgment of the Circuit Court is

Aff irmed , wit h cos ts .

2. A steam vessel sailing in a harbor like that of New York, where there are vessels at anchor and in motion, is bound to move at no headway not entirely controllable. '

Appeal from the Circuit Court for the Southern District of New York, affirming a decree of the District Court of said district; in which latter court Samuel Schuyler, owner of the steamer America, had libelled the steam-propeller Corsica, one of the steamers of the Cunard line, for damages which his vessel had suffered by being, as he alleged, run into by the Corsica, in the harbor of New York. The collision occurred on the 9th of September, 1865, about midday ; the weather having been clear, and the vessels for some time previously in plain sight of each other. The libelled vessel, the Corsica, laid the blame of the disaster wholly, on the other steamer. The District Court decreed for the libellant; the Circuit Court affirmed that decree, condemning the Corsica in $33,000 damages and costs. Whereupon the owners of the Corsica appealed to this court.

Tlfr. D. D. Lord, for the appellant; Mr. Van Sandvoord, contra.

Mr. Justice BRADLEY stated the facts, and delivered the opinion of the court.

course lay across that of the Corsica, and the men on e two vessels each saw the approach of the other when t ey were about four hundred or five hundred yards apart. rom the course the vessels were respectively pursuing, t e o southerly, nearly in line with the river, and the other nor

westerly, in a diagonal line, the Corsica was off the starboard bow of the America, and the latter was off the larboard bow of the Corsica. Both being steamers, and standing on an equal footing, they were subject to the following rule, adopted by Congress in the act of April 29th, 1864:*

“ If two ships under steam are crossing so as to involve risk of collision, the ship which has the other on her own starboard side shall keep out of the way of the other.”

This rule made it the duty of the America to keep out of the way of the Corsica; and, by implication, the corresponding and reciprocal duty of the Corsica to keep on her course. It can hardly be doubted from the evidence, taken together, that had the Corsica kept on her course, the collision would not have occurred. The diagrams furnished by the counsel for the appellants render this fact very clear and demonstrable. But, instead of doing this, the persons in charge of the Corsica, just before the collision occurred, ordered her helm hard a-starboard, and thus turned her right upon the America, which, as in duty bound, was backing out of her way. It is so apparent that this was the immediate cause of the disaster that it casts the burden of proof upon the appellants to show a sufficient cause in the conduct of the America to justify such a sudden change of course. We have carefully examined the testimony to see it anything of the kind was elicited, and have failed to find it. It is admitted by the pilot of the America that his first intention was to pass ahead of the Corsica; but seeing that it was risky, he took the more prudent course of stopping and backing. The master of the oisica says, in effect, that the America had got right ahead o im, in his way, and he was obliged to turn to the left as the best means of avoiding or diminishing the danger. Now,

6 lagram of the courses of the two vessels shows that this could not have been so, until the Corsica had herself changed er couise. And the master of the Corsica admits that in-8 ea o eeping her course, her helm was starboarded, and

* 13 Stat, at Large, 60.

her course was altered two points, for the purpose of passing under the stern of the America, soon after the latter vessel was discovered. This, if so, was the first error. It was the business of the Corsica, as we have seen, to have kept on her course. After this, perceiving the danger she had brought upon herself, her helm was again starboarded, and the collision ensued. According to the master of the Corsica’s own account, therefore, the accident occurred in consequence of her assuming to perform the duty which devolved on the America under the Congressional rule above quoted.

It is also evident that the Corsica was under considerable headway when the collision occurred. The force of the blow proves this. The America did not contribute to the effect of the blow, for the weight of the evidence is, that she was backing away from the Corsica at the time. The fact is, that the latter vessel was under too much speed for the place she was in—a crowded harbor, spotted with vessels at anchor and in motion. This made her headway uncontrollable, and accounts for the fact that, although her officers tried to check her speed, they were only very partially successful.

We are satisfied that the decree of the Circuit Court was right, and ought to be

• . . \ Aff irme d .

City of Paris .

Mr. Justice SWAYNE stated the facts and delivered the opinion of the court.

The cause was one of collision. The vessels concerned were the schooner Percy Heilmar and the steamer City of Paris. The schooner was 78 feet in length; her tonnage, new measurement, was 107 tons; her carrying capacity was about 170 tons. The City of Paris was an iron screw steamer. She was 375 feet long, and 40 feet beam. Iler register was 1669 tons, English measurement. Her engines were 600 horse power. The schooner was laden with coal, and was on a voyage from Philadelphia to Pawtucket, Rhode Island, by way of Long Island Sound.

The steamer was engaged in running between the ports of New York and Liverpool. The collision occurred on the morning of the 14th of April, 1866, below the Battery, in the North River. The schooner had arrived at the port of New York that morning. The tide being unfavorable for ascending the East River, she stood over towards Jersey City to find a suitable place to anchor, intending to wait there until the tide in the East River should be favorable. While proceeding to carry out this purpose, heading about west by nort , with the wind free, the steamer ran into her, striking her on the starboard side, about the main chains. The blow was of such violence as to prostrate her mainmast and cut er neaily in two. As soon as she was struck the steamer put on steam and carried her forward to avoid raking, or being raked by other vessels, which the pilot of the steamer sajs would have done more damage than sinking a dozen

ooners. The schooner hung for a time on the steamer’s ni°7* c j 6 8ay8 ’ 800n as we got below, a little Li/T’a little room, then we stopped the steamer,

The course of the schooner was nearly at right angles with the course of the steamer. It lay between a brig and a ship—both with their heads to the eastward, and one a little astern of the other. They were about three hundred feet apart. The brig was on the starboard and the ship was on the port side of the schooner. The course of the steamer was between the same vessels, with the ship on the starboard and the brig on her larboard side. The pilot says he picked out this course, though it was “ pretty narrow.” The subject was talked over. His plan was to go under the stern of the brig and ahead of the ship.

As almost invariably happens in this class of cases, each vessel has a theory which vindicates itself and condemns its adversary; and, as usual, each theory is earnestly supported by those on board the vessel which propounds it. In this case it is clear there is fault and responsibility somewhere. Our duty is to find where they belong and to pronounce accordingly. The District Court adjudged against the steamer, and the Circuit Court affirmed the decree.

The theory of the schooner is, that she was keeping her course, as she had a right to do, and that the steamer was wholly in fault. The steamer maintains that as soon as the schooner had passed under the stern of the brig, she descried the steamer for the first time and luffed, intending to pass between the brig and the steamer; that the steamei backed hard to enable her to do so, and that the schooner thereupon immediately fell off into the line of the steamer’s course, and thus brought about the catastrophe. The steamer insists that if the schooner had kept her course, without luffing, the steamer would have passed undei her stern; that if the schooner had continued her course a ter luffing, she would have passed between the steamer and t e brig, and that her subsequent change of course was a gi()^ fault, the sole cause of the collision, and deprives her o a

. Opinion of the court.

claim to damages for the consequences. These conflicting views define the sphere of our inquiries in the case.

The morning was clear. The river was crowded with vessels sailing and at anchor. The condition of things required the greatest circumspection on the part of the steamer. Her rate of speed was probably from seven to eight miles an hour. The combined speed of both vessels was not less than ten miles an hour. The schooner was first seen by Mathewson, who was then, and had been from the time the steamer left the wharf, on her forecastle head as a lookout. He says that when first seen the schooner was from three to four points off the port bow of the steamer, and, he thinks, was distant about four hundred yards. Captain Kennedy, of the steamer, thinks she was a quarter of a mile off*. Estimates of distance, under such circumstances, are little to be relied upon. It is to be presumed the witnesses in this instance made it large enough. Conceding that the distance to be passed by both vessels, to the point of collision, was a full quarter of a mile, the combined speed of ten miles an hour would have brought them together in a minute and a half. Mathewson reported the schooner as soon as he saw her. The orders that were given show the perturbation which existed. Captain Kennedy says: “ When the schooner was reported, the pilot and myself both ordered the helm hard a-starboard. I said, along with the pilot, hard a-starboard, and at the same time reduced the engines dead slow. . . . The next order was to stop the engines and reverse full speed. I'worked the indicator myself.’ The orders to slow, to stop, and to reverse t e engines came too late. The steamer had but a little way 0 go. The headway she was under could not be arrested at once. It carried her forward with such force that her impact was necessarily fatal to the schooner. Her starboard]1g id no good. She could not go to the port side more an two points without colliding with the brig. She passed

in an ordinary ship’s length of the stern of that vessel.

if there had been due care and.vigilance

The results proved that the speed of. the steamer was higher than was consistent with the safety of other vessels in so crowded a thoroughfare, and hence higher than she was warranted to assume.

For these faults she must be condemned.

Was the schooner in fault?

The fact that both the courts below concurred in condemning the steamer and in exonerating the schooner is entitled to our respectful consideration.f

Decr ee af fi rmed .

Unit ed Stat es v . Roch a .

1. The eleventh section of the act of March 3d, 1851, to ascertain and settle private land claims in California (9 Stat, at Large, 631), provides that the commissioners created under the act, and the District and Supreme Courts, “in deciding on the validity of any claim brought before them under the provisions of the act, shall be governed by the treaty of Guadaloupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of the United States, so far as they are applicable.” An appeal from a decree of the commissioners rejecting a claim having been made to the District Court, an there dismissed for want of prosecution, leave to file a bill of review upon newly discovered evidence was granted by that court: Held, that

ough the provision of the eleventh section refers to the rules to be

o served by the courts in passing upon the merits of the claimant’s

t, or title to the land, the liberal and equitable principles there

joined as a duty in the decision of cases, cannot be fully or fairly

ie out without giving to them application and effect in conduci-

ng e proceedings before the courts as well as in passing upon the f th ’ an^ en<^ the court possessed the power to open a case

e PurP°se hearing newly discovered evidence upon the title of

tne claimant.