Tarsney v. Turner.

efit. This understanding was repeatedly recognized by him. He thus became her debtor, morally and legally; his obligation to account was enforceable in a court of conscience, and the conveyances made in discharge thereof are supported by a valid consideration. Complainant's bill will be dismissed with costs.

INDEX.

ABANDOMENT.-See ADMIRALTY, 40-EXECUTION, 6.

ACCRETION.-See MORTGAGES, 3.

AGENT.-See CORPORATION, 7.

ADMIRALTY.

1. In the admiralty, the court will not, on mere motion, at a subsequent term, set aside a decree made at the hearing. The Schooner Oriental, 6.

2. See MORTGAGE, 1.

3. See LIEN, 1.

4. The court has power to order the re-arrest of a vessel if the stipulation to answer a judgment has been accepted by mistake or fraud and the sureties were never bound. The Favorite, 86.

5. See SALVAGE, 1.

6. If a vessel employ a tug in general terms to tow in and land her at a particular place, the undertaking of the tug necessarily is that it will use the proper skill and ability to perform the service; and it has the right, and it becomes its duty as well, to direct the vessel that is towed, and to manage the helm, to the end that such vessel may aid in accomplishing the task entered upon, viz., making the landing. The Southwest and L. P. Smith, 79.

7. The master of a scow took possession of a lighter, having no authority therefor, and used her in carrying wood off the shore of Lake St. Clair to the scow, but neglected to return her: Held, The court of admiralty has jurisdiction, and the scow is liable in rem for the conversion.

Though originally seized in a fish pond staked off from the Detroit river, yet as the scow employed the lighter in its service upon navigable waters she was liable. The Florence, 56.

8. The provisions of Sec. 635, Revised Statutes of the United States, relative to appeals within one year from the time of entering the judgment, order or decree appealed from, does not apply to appeals from decrees in admiralty.

9. Appeals in admiralty should be taken to the term of the Circuit Court next succeeding the term of the District Court at which the decree was rendered. The Oriental, 37.

ADMIRALTY-Continued.

10. COLLISION-THE VESSEL IN FAULT-NEGLIGENCE.-The result of
the authorities, English and American, is that when a collision
occurs between a vessel in motion propelled by steam or sail, and
a vessel or other thing at rest, the vessel in motion is prima facie
in fault; that it can excuse itself only by showing the cause of the
disaster, and that it must appear on such showing that the cause
was not one of the ordinary forces of nature, but something unex
pected, as a sudden storm, an unknown current or unexpected
derangement of machinery, which could not have been anticipated
or guarded against by the exercise of ordinary skill.

11. BURTHEN OF PROOF.-Neither in a civil nor criminal case does the
burthen of proof ever shift. It remains on the party on whom it
rested in the beginning.

12. TRUE RULE AS TO NEGLIGENCE.-When the thing is shown to be
under the management of the defendant or his servants, and the
accident is such as in the ordinary course of things does not hap-
pen if those who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the defend-
ant, that the accident aro e from want of care.

13. COLLISION IN DAYLIGHT-PRESUMPTION.-When the collision occurs
in broad day light the legal presumption is that the accident was
occasioned by the fault of the vessel in motion.

14. PILOT-ACCIDENT UNAVOIDABLE.-The proof as to how the pilot
turned his wheel, and that his management was proper under the
circumstances, by himself and others—and that proper nautical
skill was used, is a very different thing from showing that he was
skillful, and in the emergency did, in his opinion, exercise his best
skill and judgment. The fact that the pilot did what his best judg
ment dictated may prove his want of judgment, but not that the
act was unavoidable.

15. WHAT NEGLIGENCE PLAINTIFFS MUST SHOW.-To entitle plaintiffs
to recover it is not incumbent on them to show the specific act of
negligence committed by defendants. It is superfluous to inquire
wherein the steamboat was not managed with proper nautical skill
when the collision was caused by a vessel having the power to
move or stop at pleasure in a channel of sufficient breadth, without
any superior force compelling her to the place of collision. It is
not necessary for the plaintiff to trace specifically in what the neg
ligence consists, and if the accident arose from some inevitable
fatality, it is for the defendant to show it. Hall & Eddy v. Little,
153.

16. Material men furnishing supplies in the home port where the State
law gives a lien have a lien of equal rank with material men fur-
nishing supplies in a foreign port. There is no preference of
payment in their claims.

ADMIRALTY-Continued.

17. The clerk of the District Court placed claims for supplies furnished
in Canadian ports in a higher rank than claims of domestic mate-
rial men. This was excepted to on the ground that all material men
should stand on an equal footing, and the exception was sustained
by the circuit judge on appeal. The General Burnside, 144.
18. The collision act of 1864 provides that when steamers are meeting
end on or nearly end on, they shall port-each one-and go to the
right, but this applies to cases in which each steamer is, at night,
in such position as to see both of the colored lights of the other.
Where the red light is opposite the red light of the other it does
not apply, and if the green light of one of the steamers is opposite
the green light of the other, or if in any case each vessel shows to
the other a single colored light directly ahead, or where both lights
are anywhere but ahead, the rule does not apply.

19. There is no general obligation to slacken speed, although two steam-
ers are found approaching each other in such a way as that it is
necessary to change the helm in order to avoid a collision, yet such
an obligation arises in case of continuous approach or when the
approaching light is found to be closing in instead of opening out.
20. If the question be whether there was promptness in giving and exe-
cuting orders upon a steamer immediately before a collision, the
fact that the master left the deck after the lights of the approach-
ing vessel had been seen, and did not return until after a collision
had become inevitable, may be looked to, as also the further fact
that the engineer for two or three times left his post to observe the
approaching lights. The court may properly consider such facts
as indicating a want of due diligence. The Manitoba, 241.
21. The wife of a passenger brought a libel in rem to recover damages
for the death of her husband, caused by the negligence of the
officers of the vessel.

22. Plea to the jurisdiction. Jurisdiction sustained. The Chas. Morgan,
274.

23. See SALVAGE, 3 and 4.

24. Where a collision occurred between a propeller that was aground on
the St. Clair Flats and a tow that was bound up, the propeller was
condemned for not exhibiting a proper light, and the tug because
it failed to stop. The schooner that was towed was adjudged

faultless.

25. THE RELATION BETWEEN TUG AND TOW.-Looking to the business
of towing as ordinarily conducted upon the lakes, the relation be-
tween the tug and the vessel towed is that of master and servant.
The tug furnishes her own crew, regulates the length of the line
and the movements of the vessels, the order in which the tow shall
be made up, and determines the number of the tow, irrespective
of the wishes of the master of the vessel towed. Each vessel is